19–010

Calendar No. 32

108TH CONGRESS REPORT " SENATE ! 1st Session 108–40

AMENDMENT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 

1978 TO ALLOW SURVEILLANCE OF NON-UNITED STATES PERSONS WHO 

ENGAGE IN OR PREPARE FOR INTERNATIONAL TERRORISM WITHOUT 

AFFILIATION WITH A FOREIGN GOVERNMENT OR INTERNATIONAL TERRORIST GROUP

APRIL 29, 2003.—Ordered to be printed 

Mr. HATCH, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 113] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to which was referred the bill 

(S. 113) to exclude United States persons from the definition of 

‘‘foreign power’’ under the Foreign Intelligence Surveillance Act of 

1978 relating to international terrorism, having considered the 

same, reports favorably thereon with amendment, and recommends 

that the bill as amended do pass.

CONTENTS 

Page 

I. Purpose ........................................................................................................... 2

II. Background on the Legislation ..................................................................... 2

III. Need for the Legislation ................................................................................ 2

IV. Hearings ......................................................................................................... 6

V. Committee Consideration .............................................................................. 6

VI. Section-by-Section Analysis and Discussion ................................................ 8

VII. Congressional Budget Office Cost Estimate ................................................ 8

VIII. Regulatory Impact Statement ....................................................................... 9

IX. Additional Views ............................................................................................ 10

2

X. Appendix A—Excerpts from Joint Inquiry Briefing by Staff on United 

States Government Counterterrorism Organizations and on the Evolution of the Terrorist Threat and United States Response: 1986–

2001, September 24, 2002 .......................................................................... 76

XI. Appendix B—Letter from Judiciary Committee Chairman Hatch to Senators Leahy, Grassley and Specter, dated February 27, 2003 ............... 79

XII. Appendix C—Letter from the Department of Justice to Senate Select 

Committee on Intelligence Chairman Graham and Vice-Chairman 

Shelby, dated August 6, 2002 .................................................................... 86

XIII. Appendix D—Letter from the Department of Justice to Judiciary Committee Chairman Leahy, dated December 23, 2002 ................................ 89

XIV. Appendix E—Letter from the Department of Justice to Senate Select 

Committee on Intelligence Chairman Graham and Vice-Chairman 

Shelby, dated July 31, 2002 ...................................................................... 98

XV. Changes in Existing Law .............................................................................. 103

I. PURPOSE

The purpose of S. 113 is to amend the Foreign Intelligence Surveillance Act of 1978 (FISA), title 50, United States Code, to permit 

surveillance of so-called ‘‘lone wolf’’ foreign terrorists. S. 113 would 

allow a FISA warrant to issue upon probable cause that a nonUnited States person is engaged in or preparing for international 

terrorism, without requiring a specific showing that the non-United 

States person also is affiliated with a foreign power. By eliminating 

the requirement of a foreign-power link for FISA warrants in such 

cases, S. 113 would allow U.S. intelligence agencies to monitor foreign terrorists who, though not affiliated with a group or government, pose a serious threat to the people of the United States. In 

light of the significant risk of devastating attacks that can be carried out by non-United States persons acting alone, individual terrorists must be monitored and stopped, regardless of whether they 

operate in coordination with other individuals or organizations. 

II. BACKGROUND ON THE LEGISLATION

THE 107TH CONGRESS

In the 107th Congress, S. 2586 was introduced on June 5, 2002 

by Senators Schumer and Kyl. S. 2586 was identical to S. 113 as 

introduced in the 108th Congress. 

THE 108TH CONGRESS

In the 108th Congress, Senator Kyl introduced S. 113 on January 

9, 2003. Senate Judiciary Committee Chairman Hatch, Senator 

DeWine, and Senator Schumer were original co-sponsors of S. 113. 

Senator Chambliss and Senator Sessions became co-sponsors of S. 

113, on January 28, and February 6, 2003, respectively. 

III. NEED FOR THE LEGISLATION

S. 113 expands the Foreign Intelligence Surveillance Act of 1978 

to permit surveillance or physical searches relating to non-United 

States persons where there is probable cause to believe that such 

individual is involved in international terrorism, without regard to 

whether such persons are affiliated with a foreign government or 

terrorist group. 

The September 11, 2001 terrorist attacks on the people of the 

United States underscored the need for this legislation. Several 

weeks before those attacks, federal law enforcement agents identiVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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1 In their joint additional views, Senators Leahy and Feingold express some confusion as to 

why the investigation of the suspected 20th September 11 hijacker was impeded by FISA’s cur- rent requirement that every suspected international terrorist also be shown to be an agent of 

a foreign power. Senators Leahy and Feingold suggest that the F.B.I. had ‘‘all the evidence it 

needed to procure’’ a warrant for this individual. To the extent that Senators Leahy and Feingold refer to a FISA warrant, it would appear that they do not appreciate the meaning of the 

term ‘‘agent’’ as employed by FISA. The current FISA’s ‘‘agent’’ requirement, and its effect on 

the investigation of the September 11 conspiracy, were described by the FBI in a September 

24, 2002 joint hearing before the Intelligence Committees. The relevant passages from that 

hearing are attached as Appendix A to this report. 

fied one of the participants in that conspiracy as a suspected international terrorist. These agents sought to obtain a FISA warrant 

to search his belongings. One of the principal factors that prevented the issuance of such a warrant was FISA’s requirement that 

the target be an agent of a foreign power. Even if federal agents 

had been able to demonstrate that this person was preparing to 

commit an act of international terrorism, based on the suspicious 

conduct that had first brought him to the attention of authorities, 

the agents would not have been able to obtain a warrant to search 

him absent a link to a foreign power. As a result, these federal 

agents spent three critical weeks before September 11 seeking to 

establish this terrorist’s tenuous connection to groups of Chechen 

rebels—groups for whom we now know this terrorist was not working. 

It is not certain that a search of this terrorist would necessarily 

have led to the discovery of the September 11 conspiracy. We do 

know, however, that information in this terrorist’s effects would 

have linked him to two of the actual September 11 hijackers, and 

to a high-level organizer of the attacks who was captured in 2002 

in Pakistan. And we do know that suspending the requirement of 

a foreign-power link for lone-wolf terrorists would have eliminated 

the major obstacle to federal agents’ investigation of this terrorist—

the need to fit this square peg into the round hole of the current 

FISA statute.1

FISA allows a specially designated court to issue an order authorizing electronic surveillance or a physical search upon probable 

cause that the target of the warrant is ‘‘a foreign power or an agent 

of a foreign power.’’ 50 U.S.C. § 1805(a)(3)(A), § 1824(a)(3)(A). The 

words ‘‘foreign power’’ and ‘‘agent of a foreign power’’ are defined 

in § 1801 of FISA. ‘‘Foreign power’’ includes ‘‘a group engaged in 

international terrorism or activities in preparation therefor,’’

§ 1801(a)(4), and ‘‘agent of a foreign power’’ includes any person 

who ‘‘knowingly engages in sabotage or international terrorism, or 

activities that are in preparation therefor, for or on behalf of a foreign power.’’ § 1801(b)(2)(C). 

Requiring that targets of a FISA warrant be linked to a foreign 

government or international terrorist organization may have made 

sense when FISA was enacted in 1978; in that year, the typical 

FISA target was a Soviet spy or a member of one of the hierarchical, military-style terror groups of that era. Today, however, 

the United States faces a much different threat. The United States 

is confronted not only by specific groups or governments, but by a 

movement of Islamist extremists. This movement does not maintain a fixed structure or membership list, and its adherents do not 

always advertise their affiliation with this cause. Moreover, in response to the United States’ efforts to fight terrorism around the 

4

2Senator Leahy has included with his additional views an appendix with a 37-page report prepared by Senators Leahy, Grassley and Specter critiquing the FBI’s pre-September 11 intelligence activities and the FBI in general, which itself is accompanied by a substantial appendix 

of exhibits. Senator Leahy previously has introduced the same document into the Congressional 

Record. On February 27, 2003, Chairman Hatch presented to Senator Leahy a letter identifying 

numerous inaccuracies, errors, and apparent misunderstandings in Senator Leahy’s personal report. We include Chairman Hatch’s letter as Appendix B to this report. 

Senators Leahy and Feingold also suggest that more information about U.S. intelligence agencies’ surveillance of suspected terrorists and other counterintelligence activities should be made 

public. The Department of Justice previously has indicated to Senator Leahy that the disclosures that he recommends would reveal sensitive information about U.S. anti-terrorism efforts 

to terrorist organizations. A copy of the Department’s letter to Senator Leahy is included in Appendix C to this report. 

Senators Leahy and Feingold also question the propriety of FISA investigations that extend 

to public libraries, raising the specter of J. Edgar Hoover. The Department of Justice previously 

has explained to Senator Leahy in responses to written questions the relevant legal standards 

governing FISA investigations, and why some investigations lead to public libraries. The Department has indicated, for example, that some FBI offices ‘‘followed up on leads concerning email and Internet use information about specific [September 11] hijackers from computers in 

public libraries.’’ We include the relevant Department of Justice responses to written questions 

in Appendix D to this report.

world, this movement increasingly has begun operating in a more 

decentralized manner.2

The origins and evolution of the Islamist terrorist threat, and the 

difficulties posed by FISA’s current framework, were described in 

detail by Spike Bowman, the Deputy General Counsel of the FBI, 

at a Senate Select Committee on Intelligence hearing on the predecessor to S. 113. Mr. Bowman testified:

When FISA was enacted, terrorism was very different 

from what we see today. In the 1970s, terrorism more 

often targeted individuals, often carefully selected. This 

was the usual pattern of the Japanese Red Army, the Red 

Brigades and similar organizations listed by name in the 

legislative history of FISA. Today we see terrorism far 

more lethal and far more indiscriminate than could have 

been imagined in 1978. It takes only the events of September 11, 2001, to fully comprehend the difference of a 

couple of decades. But there is another difference as well. 

Where we once saw terrorism formed solely around organized groups, today we often see individuals willing to 

commit indiscriminate acts of terror. It may be that these 

individuals are affiliated with groups we do not see, but it 

may be that they are simply radicals who desire to bring 

about destruction. 

* * * * * * *

[W]e are increasingly seeing terrorist suspects who appear to operate at a distance from these [terrorists] organizations. In perhaps an oversimplification, but illustrative 

nevertheless, what we see today are (1) agents of foreign 

powers in the traditional sense who are associated with 

some organization or discernible group (2) individuals who 

appear to have connections with multiple terrorist organizations but who do not appear to owe allegiance to any one 

of them, but rather owe allegiance to the International 

Jihad movement and (3) individuals who appear to be personally oriented toward terrorism but with whom there is 

no known connection to a foreign power. 

This phenomenon, which we have seen * * * growing 

for the past two or three years, appears to stem from a soVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6969 E:\HR\OC\SR040.XXX SR040
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cial movement that began at some imprecise time, but certainly more than a decade ago. It is a global phenomenon 

which the FBI refers to as the International Jihad Movement. By way of background we believe we can see the 

contemporary development of this movement, and its focus 

on terrorism, rooted in the Soviet invasion of Afghanistan. 

* * * * * * *

During the decade-long Soviet/Afghan conflict, anywhere 

from 10,000 to 25,000 Muslim fighters representing some 

forty-three countries put aside substantial cultural differences to fight alongside each other in Afghanistan. The 

force drawing them together was the Islamic concept of 

‘‘umma’’ or Muslim community. In this concept, nationalism is secondary to the Muslim community as a whole. 

As a result, Muslims from disparate cultures trained together, formed relationships, sometimes assembled in 

groups that otherwise would have been at odds with one 

another[,] and acquired common ideologies. * * * 

Following the withdrawal of the Soviet forces in Afghanistan, many of these fighters returned to their homelands, 

but they returned with new skills and dangerous ideas. 

They now had newly acquired terrorist training as guerrilla warfare [had been] the only way they could combat 

the more advanced Soviet forces. 

* * * * * * *

Information from a variety of sources repeatedly carries 

the theme from Islamic radicals that expresses the opinion 

that we just don’t get it. Terrorists world-wide speak of 

jihad and wonder why the western world is focused on 

groups rather than on concepts that make them a community. 

* * * * * * *

The lesson to be taken from [how Islamist terrorists 

share information] is that al-Qaida is far less a large organization than a facilitator, sometimes orchestrator of Islamic militants around the globe. These militants are 

linked by ideas and goals, not by organizational structure. 

* * * * * * *

The United States and its allies, to include law enforcement and intelligence components worldwide[,] have had 

an impact on the terrorists, but [the terrorists] are adapting to changing circumstances. Speaking solely from an 

operational perspective, investigation of these individuals 

who have no clear connection to organized terrorism, or 

tenuous ties to multiple organizations, is becoming increasingly difficult. 

The current FISA statute has served the nation well, but 

the International Jihad Movement demonstrates the need 

to consider whether a different formulation is needed to 

address the contemporary terrorist problem.

The Committee notes that when FISA was enacted in 1978, the 

Soviet invasion of Afghanistan had not yet occurred and both Iran 

and Iraq were considered allies of the United States. The world has 

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3 In a separate statement of additional views on S. 113, Senator Feingold expresses concerns 

about the constitutionality of allowing surveillance of lone-wolf terrorists pursuant to FISA. He 

suggests that by allowing searches of persons involved in international terrorism without regard 

to whether such persons are affiliated with foreign powers, S. 113 ‘‘writes out of the statute a 

key requirement necessary to the lawfulness of such searches.’’ In order to address Senator 

Feingold’s concerns, the Committee attaches as Appendix E to this report a letter presenting 

the views of the U.S. Department of Justice on S. 2586, the predecessor bill to S. 113. 

The Department of Justice’s letter provides a detailed analysis of the relevant Fourth Amendment jurisprudence, concluding that the bill’s authorization of lone-wolf surveillance would ‘‘satisfy constitutional requirements.’’ The Department emphasizes that anyone monitored pursuant 

to the lone-wolf authority would be someone who, at the very least, is involved in terrorist acts 

that ‘‘transcend national boundaries in terms of the means by which they are accomplished, the 

persons they appear intended to coerce or intimidate, or the locale in which their perpetrators 

operate or seek asylum.’’ (Quoting 50 U.S.C. § 1801(c)(3).) Therefore, a FISA warrant obtained 

pursuant to this authority necessarily would ‘‘be limited to collecting foreign intelligence for the ‘international responsibilities of the United States, and the duties of the Federal Government 

to the States in matters involving foreign terrorism.’ ’’ (Quoting United States v. Dugan, 743 

F.2d 59, 73 (2d Cir. 1984).) The Department concludes ‘‘the same interests and considerations 

that support the constitutionality of FISA as it now stands would provide the constitutional justification for S. 2568.’’ The Department additionally notes that when FISA was enacted it was 

understood to allow surveillance of groups as small as two or three persons. The Department 

concludes that ‘‘[t]he interests that the courts have found to justify the procedures of FISA are 

not likely to differ appreciably as between a case involving such a group * * * and a case involving a single terrorist.’’

changed. It is the responsibility of Congress to adapt our laws to 

these changes, and to ensure that law enforcement and intelligence 

agencies have at their disposal all of the tools they need to combat 

the terrorist threat currently facing the United States. The Committee concludes that enactment of S. 113’s modification of FISA to 

facilitate surveillance of lone-wolf terrorists would further 

Congress’s fulfillment of this responsibility.3

IV. HEARINGS

S. 2586 was originally referred to the Senate Select Committee 

on Intelligence. It held one hearing on S. 2586 on July 31, 2002, 

and then referred the matter to the Judiciary Committee for consideration. 

Testimony at the July 31, 2002 hearing was received from six 

witnesses: Senator Charles E. Schumer of New York; Mr. James 

Baker, Counsel for Intelligence Policy, Officer of Intelligence and 

Policy Review, Department of Justice; Mr. Marion E. (Spike) Bowman, Deputy General Counsel, Federal Bureau of Investigation; 

Mr. Fred Manget, Deputy General Counsel, Office of General Counsel, Central Intelligence Agency; Mr. Jerry Berman, Executive Director, Center for Democracy and Technology; and Professor 

Clifford Fishman, Columbus School of Law, Catholic University of 

America. 

V. COMMITTEE CONSIDERATION

THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE

107TH CONGRESS

The Committee on the Judiciary did not consider S. 2586 in executive session during the 107th Congress. 

THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE

108TH CONGRESS

The Committee on the Judiciary, with a quorum present, met in 

open and executive session on March 6, 2003, to consider S. 113. 

Senator Kyl offered a substitute amendment on behalf of himself, 

Senator Schumer, Senator Biden, and Senator DeWine, which the 

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Committee adopted by unanimous consent. The substitute amendment made three changes to S. 113. First, the amendment changed 

the location within FISA of S. 113’s authorization of surveillance 

and searches of lone-wolf terrorists. As originally introduced, S. 113 

would have amended 50 U.S.C. § 1801(a), which defines the term ‘‘foreign power’’ for purposes of FISA. The Kyl-Schumer-BidenDeWine amendment modified S. 113 so that it amends § 1801(b), 

which defines the term ‘‘agent of a foreign power’’ for purposes of 

FISA. Placing the authorization to monitor lone-wolf terrorists in 

subsection 1801(b) does not alter the substance of S. 113. 

The second change made by the substitute amendment was to 

subject the lone-wolf authorization to the same sunset provision 

that applies to the USA PATRIOT Act of 2001 (Public Law 107– 56; 115 Stat. 295). 

The third change made by the substitute amendment was to 

change the stated purpose of the bill. The original stated purpose 

of both S. 113 and its predecessor, S. 2586—‘‘to exclude United 

States persons from the definition of ‘foreign power’ under the Foreign Intelligence Surveillance Act of 1978 related to international 

terrorism’’—does not accurately describe the purpose of the bill, 

and appears to reflect a misunderstanding of its effect. The new 

stated purpose supplied by the substitute amendment—‘‘to expand 

the Foreign Intelligence Surveillance Act of 1978 (‘FISA’) to reach 

individuals other than United States persons who engage in international terrorism without affiliation with an international terrorist group’’—is that suggested by the Department of Justice in its 

July 31, 2002 Statement of Administration Policy on S. 2586. 

The only other amendment to S. 113 that was considered by the 

Judiciary Committee was an amendment offered by Senator Feingold. This proposal would have amended FISA to allow discovery 

of applications and affidavits filed in support of a FISA warrant 

under the standards and procedures of the Classified Information 

Procedures Act of 1980 (18 U.S.C. App.).

The Committee, on a 11–4 rollcall vote, defeated the Feingold 

amendment. The vote on the amendment was as follows: 

Tally: 4 Yes, 11 No, 4 Not Voting 

Republicans (10) 

N Hatch (R–Utah) 

N Grassley (R–Iowa) 

N Specter (R–Pa.) 

N Kyl (R–Ariz.) 

N DeWine (R–Ohio) 

N Sessions (R–Ala.) 

N Graham (R–S.C.) 

N Craig (R–ID ) 

N Chambliss (R–Ga.) 

N Cornyn (R–Tex.)

Democrats (9)

Y Leahy (D–Vt.) 

Y Kennedy (D–Mass.) 

NV Biden (D–Del.) 

NV Kohl (D–Wis.) 

NV Feinstein (D–Calif.) 

Y Feingold (D–Wis.) 

8

N Schumer (D–N.Y.) 

Y Durbin (D–Ill.) 

NV Edwards (D–N.C.)

The Committee then voted 19–0 to report favorably S. 113 to the 

full Senate with a recommendation that the bill do pass. 

VI. SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Treatment as agent of a foreign power under Foreign Intelligence Surveillance Act of 1978 of non-United States persons 

who engage in international terrorism without affiliation with 

international terrorist groups 

Section 1 includes two paragraphs. Paragraph (a) amends the 

definition of an ‘‘agent of a foreign power,’’ 50 U.S.C. §1801(b)(1), 

to include in a new subparagraph (C) a non-United States person 

who ‘‘engages in international terrorism or activities in preparation 

therefor.’’ Paragraph (b) subjects this new authority to the sunset 

provision in section 224 of the USA PATRIOT Act of 2001 (Public 

Law 107–56; 115 Stat. 295), which terminates the authority on December 31, 2005. 

VII. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with paragraph 11(a) of rule XXVI of the standing 

rules of the Senate, the Committee sets forth, with respect to the 

bill, S. 113, the following estimate and comparison prepared by the 

Director of the Congressional Budget Office under section 403 of 

the Congressional Budget Act of 1974.

S. 113—A bill to amend the Foreign Intelligence Surveillance Act of 

1978 to cover individuals, other than United States persons, 

who engage in international terrorism without affiliation with 

an international terrorist group 

CBO estimates that implementing S. 113 would not result in any 

significant cost to the federal government. Enacting S. 113 could 

affect direct spending and receipts, but CBO estimates that any 

such effects would not be significant. S. 113 contains no intergovernmental or private-sector mandates as defined in the Unfunded 

Mandates Reform Act and would impose no costs on state, local, or 

tribal governments. 

S. 113 would amend the Foreign Intelligence Surveillance Act of 

1978 to expand the definition of ‘‘agent of a foreign power.’’ Under 

the bill, this designation would include persons (other than U.S. 

persons) who engage in or prepare for international terrorist acts 

on their own. This would enable the Attorney General to use electronic surveillance to acquire information on such individuals. The 

provisions of S. 113 would expire on December 31, 2005. 

Implementing the bill could result in more successful investigations and prosecutions in certain cases involving terrorist acts. 

CBO expects that any increase in costs for law enforcement, court 

proceedings, or prison operations would not be significant because 

of the small number of cases likely to be affected. Any such additional costs would be subject to the availability of appropriated 

funds. 

9

Because those prosecuted and convicted under S. 113 could be 

subject to criminal fines, the federal government might collect additional fines if the bill is enacted. Collections of such fines are recorded in the budget as governmental receipts (revenues), which 

are deposited in the Crime Victims Fund and later spent. CBO expects that any additional receipts and direct spending would be 

negligible because of the small number of cases involved. 

VIII. REGULATORY IMPACT STATEMENT

In compliance with paragraph 11(b)(1), rule XXVI of the Standing Rules of the Senate, the Committee, after due consideration, 

concludes that S. 113 will not have a significant regulatory impact. 

(10)

IX. ADDITIONAL VIEWS

ADDITIONAL VIEWS OF SENATOR LEAHY AND SENATOR 

FEINGOLD 

In times of national stress there is an understandable impulse 

for the government to seek more power. Sometimes more power is 

needed, and sometimes it is not. Appropriate checks on new grants 

of power to government, and meaningful oversight of how that 

power is used, are always warranted however. While we supported 

reporting S. 113 from the Judiciary Committee because of the sunset provision that was added at the markup, we remain concerned 

that this measure will not ensure that the government’s FISA 

power is being used as effectively or appropriately as is necessary. 

Sunset provisions, such as the one that we and other Democratic 

Senators helped add during our markup, allow us to adopt such 

measures as S. 113 on a temporary basis. Without strong means 

to conduct oversight, however, there is no way to determine whether those tools are working, and whether they are being properly 

used. We hope that we can consider such important oversight 

mechanisms as are contained in the Leahy-Grassley-Specter-Feingold Domestic Surveillance Oversight Act of 2003, S. 436, in order 

to reinforce and make more meaningful a system of checks and balances for expansions of power such as those in S. 113. 

After the September 11 attacks, many from both sides of the 

aisle worked together in a bipartisan fashion and with unprecedented speed to craft and enact the USA PATRIOT Act, which enhanced the government’s surveillance powers. Since that time, 

however, we have had a difficult time in gaining cooperation from 

the Department of Justice in our bipartisan oversight efforts to 

evaluate how those powers are being used. 

Now, as we consider S. 113—and as we hear of Administration 

plans to unveil a proposed sequel to the USA PATRIOT Act, which 

is being developed without bipartisan consultation—it is vital for 

us also to examine and understand how federal agencies are using 

the power that they already have. We must answer two questions: 

First, is that power being used effectively? The American 

people want to feel safer, but, more than that, they want to be 

safer; they want and need results, not rhetoric. 

Second, is that power being used appropriately, so that our 

liberties are not sacrificed, so that the openness of our society 

and our government are preserved, and so that our tax dollars 

are not squandered? 

Unfortunately, the FBI and the Department of Justice have either been unwilling or unable to help us to answer these basic 

questions. Moreover, the information that we have gleaned on our 

11

own through our bipartisan oversight efforts has not inspired confidence. 

Last month, Senators Grassley, Specter and Leahy released a detailed report based on the oversight that the Judiciary Committee 

conducted in the 107th Congress (‘‘FISA Implementation Failures 

Report,’’ or ‘‘FIF Report’’). While it is not a report of the Committee 

because it was released after Senator Hatch had assumed the 

chair, the FIF report distills our bipartisan findings and conclusions from numerous hearings, classified briefings and other oversight activities in the 107th Congress. 

The Committee’s oversight work demonstrated the pressing need 

for reform of the FBI. In particular, the FIF Report focused on the 

FBI’s failures in implementing FISA, the very law that S. 113 

seeks to further amend. That FIF Report is being included as Attachment A to these views, because it bears so directly on some of 

the claims made about the urgency of passing S. 113, and the continuing need for proper oversight checks to balance such proposals. 

(See Attachment A). 

The Administration’s response to our bipartisan oversight report 

has been to dismiss it as ‘‘old news’’ relating to problems that are 

all already fixed. In short, ‘‘everything is fine’’ at the FBI and they 

plan to do nothing to respond to the systemic problems identified 

and described in the Specter-Grassley-Leahy report. Despite the 

need for Congress to understand how today’s FISA statute, as 

amended by the USA PATRIOT Act, is being used and interpreted 

by federal agencies, Congress, while being kept in the dark, is 

being asked instead to expand the FISA statute still further. 

This bill, S. 113, adopts a ‘‘quick fix’’ approach. With catchy 

monikers like the ‘‘Moussaoui fix’’ and the ‘‘lone wolf’’ bill, it is 

aimed at making Americans feel safer, but it does not address the 

chronic problems that actually plague the effectiveness of our intelligence gatherers. The rationales justifying this bill have shifted 

over time as well. 

In many ways, S. 113 seems to be a legislative change in search 

of a rationale. First, we were told that this amendment to FISA 

would have allowed the FBI to obtain a warrant before 9–11 to 

search the computer and belongings of Zacarias Moussaoui. Then, 

after it became clear from the Joint Intelligence Committee investigation and our bipartisan Judiciary Committee oversight, spearheaded by Senators Specter and Grassley, that the FBI had all the 

evidence it needed to procure such a warrant had they only understood the proper legal standard and properly analyzed that information, the rationale changed. Next, we were told that the bill was 

necessary to conduct surveillance of ‘‘lone wolf terrorists,’’ who purportedly operate in isolation. Next, after it became clear that few, 

if any, international terrorists work alone and that existing criminal tools such as Title III were sufficient to handle those rare 

cases, we were told that the measure was necessary because it was 

hard to prove the connection between terrorists. 

Now, in this report, the implication is revived that the FBI’s pre9/11 failures were due in large part to problems with the law, but 

12

1 In another section, however, the Committee Report all but concedes that this measure is no ‘‘Moussaoui fix,’’ when it states, ‘‘It is not certain that it would have been possible to obtain a 

FISA warrant to search [Moussaoui] even if S. 113 had been enacted prior to the September 

11 attacks.’’ One also wonders, if this was indeed the true reason for the FBI’s pre 9/11 woes, 

why the Administration did not request this FISA amendment as part of our USA PATRIOT 

Act legislation after the attacks. 2 Indeed, only recently the FBI Director followed the recommendation of a DOJ Inspector General report and disciplined the FBI’s most senior internal affairs officer, the Assistant Director 

for the Office of Professional Responsibility, for his mishandling of a whistleblower matter involving John Roberts, who gave important testimony to this Committee criticizing the FBI in 

the last Congress. 

in a vague manner.1 The Committee Report even goes so far as to 

opaquely offer that ‘‘Iran and Iraq were considered allies of the 

United States’’ in 1978 as yet another rational supporting passage 

of S. 113. It is difficult to understand precisely what relevance such 

facts might have to a FISA change dealing exclusively with persons 

who have no ties whatsoever to any foreign government. It appears, however, that the search for a rationale to support this bill— and one that can be put forth without any meaningful oversight of 

FISA’s actual implementation—continues in full force. When the 

sunset on this measure arrives we will need stronger rationales 

than this to justify its extension. 

The evidence outlined in the FIF Report, accompanying these 

views as Attachment A, and coauthored by Senators Specter, 

Grassley and Leahy, persuasively and completely rebuts that 

claim. The FBI was not properly trained, manned, or equipped to 

fight organized terrorism before 9/11. We do not know the scope of 

S. 113, which is why the addition of the sunset provision is so important. What we do know about S. 113 is that it will not fix the 

real problems that plagued the FBI before 9/11 and that continue 

at the FBI now—poor training, inadequate information analysis, 

headquarters bottlenecks, and a culture that punishes internal dissent.2 In private briefings, even FBI representatives have said that 

they do not need this change in the law in order to protect against 

terrorism. They are getting all the warrants they want under the 

current law. 

What is needed more than S. 113 is internal reform spurred by 

the kind of increased oversight structure set forth in the Domestic 

Surveillance Oversight Act of 2003, S. 436. That bill, which Senator 

Leahy introduced with Senators Grassley and Specter, would provide for increased reporting on how the government is using its domestic surveillance powers. It would allow us to monitor trends so 

we can know whether more surveillance is being focused on Americans than on non-U.S. persons. It would end the secret case law 

that has hampered the implementation of FISA over the last 24 

years. It would allow us to follow up on reports that the FBI is reviving the long discredited practice from the Hoover days of monitoring public and school libraries. This is the type of information 

that we will need in order to assess whether further changes in the 

law are required, and also whether renewal or modification of the 

provisions already enacted is warranted. 

We are all against terrorism. The unanswered question is whether the Congress will take real steps to ensure that the FBI and 

DOJ are not underusing, overusing or misusing the power that 

they already have and which we expanded in the USA PATRIOT 

Act. We must write fewer blank checks to the Executive Branch 

13

and instead focus more on ensuring that our constitutional system 

of checks and balances is enforced. 

Another issue that must be closely examined is resource allocation. We need to know whether the continued expansion of FISA 

into the criminal arena will dilute its effectiveness as a foreign intelligence tool. The Senate Select Committee on Intelligence, 

through a letter written by the Chairman, had earlier asserted concurrent jurisdiction over this bill. Now, however, there is some 

move towards that Committee ceding exclusive jurisdiction over 

this FISA measure to the Judiciary Committee. 

Whatever committee considers these matters, however, must 

carefully consider whether the changes proposed in S. 113, which 

remove FISA totally from its link to foreign powers, will result in 

the diversion of scarce counter terrorism resources away from intelligence gathering and into cases that could just as easily be prosecuted using the ample tools existing resources available in the 

criminal justice system. We must ensure that while we allow more 

flexibility in FISA’s use (subject to a sunset), FISA continues in 

practice to be used for gathering foreign intelligence, not as merely 

another tool in exclusively criminal cases. A mechanism to protect 

that link to foreign intelligence would be a welcome addition to this 

proposal, and worth serious consideration. 

If the Administration does insist on increasing its use of FISA for 

cases traditionally prosecuted as criminal matters, we should reconsider whether more of the basic due process protections of our 

criminal justice system should also be made applicable. For instance, Senator Leahy and others supported an amendment offered 

in Committee by Senator Feingold that would have required that 

the criminal discovery rules used for classified material under the 

Classified Information Procedures Act (CIPA) also be used for FISA 

materials. In the first 24 years of its existence, no FISA application 

of even a portion of such an application has been provided to a 

criminal defendant in discovery. While that rule may be defensible 

when criminal prosecution is an unintended byproduct of FISA surveillance, it is neither fair nor appropriate when criminal prosecution is the goal from the outset. It is especially difficult to defend 

in cases where the alleged terrorist is working alone, the very cases 

that S. 113 seeks to bring under the FISA rubric. More discussion 

by the Judiciary Committee of this and other aspects of FISA is 

merited. Without more fulsome oversight protections, measures 

such as S. 113 provide the illusion of security without actually 

making Americans safer. 

Attachment A 

FBI OVERSIGHT IN THE 107TH CONGRESS BY THE SENATE JUDICIARY

COMMITTEE: FISA IMPLEMENTATION FAILURES—AN INTERIM RE- PORT BY SENATORS PATRICK LEAHY, CHARLES GRASSLEY, AND

ARLEN SPECTER, FEBRUARY 2003

I. EXECUTIVE SUMMARY AND CONCLUSIONS

Working in a bipartisan manner in the 107th Congress, the Senate Judiciary Committee conducted the first comprehensive oversight of the FBI in nearly two decades. That oversight was aimed 

14

1This report is limited to non-classified information and has been submitted to the Department of Justice and FBI for a security review prior to its release and they have agreed that 

it contains no classified information. 

not at tearing down the FBI but at identifying any problem areas 

as a necessary first step to finding constructive solutions and marshaling the attention and resources to implement improvements. 

The overarching goal of this oversight was to restore confidence in 

the FBI and make the FBI as strong and as great as it must be 

to fulfill this agency’s multiple and critical missions of protecting 

the United States against crime, international terrorism, and foreign clandestine intelligence activity, within constitutional and 

statutory boundaries. 

Shortly after the Committee initiated oversight hearings and had 

confirmed the new Director of the FBI, the Nation suffered the terrorist attacks of September 11, 2001, the most serious attacks on 

these shores since Pearl Harbor. While it is impossible to say what 

could have been done to stop these attacks from occurring, it is certainly possible in hindsight to say that the FBI, and therefore the 

Nation, would have benefitted from earlier close scrutiny by this 

Committee of the problems the agency faced, particularly as those 

problems affected the Foreign Intelligence Surveillance Act 

(‘‘FISA’’) process. Such oversight might have led to corrective actions, as that is an important purpose of oversight. 

In the immediate aftermath of the attacks, the Congress and, in 

particular, the Senate Judiciary Committee responded to demands 

by the Department of Justice (DOJ) and the FBI for greater powers 

to meet the security challenges posed by international terrorism. 

We worked together to craft the USA PATRIOT Act to provide such 

powers. With those enhanced powers comes an increased potential 

for abuse and the necessity of enhanced congressional oversight. 

Our oversight has been multi-faceted. We have held public hearings, conducted informal briefings, convened closed hearings on 

matters of a classified nature, and posed written questions in letters in connection with hearings to the DOJ and FBI.1 Although 

our oversight has focused primarily on the FBI, the Attorney General and the DOJ have ultimate responsibility for the performance 

of the FBI. Without both accountability and support on the part of 

the Attorney General and senior officials of the DOJ, the FBI cannot make necessary improvements or garner the resources to implement reforms. 

At times, the DOJ and FBI have been cooperative in our oversight efforts. Unfortunately, however, at times the DOJ and FBI 

have either delayed answering or refused to answer fully legitimate 

oversight questions. Such reticence only further underscores the 

need for continued aggressive congressional oversight. Our constitutional system of checks and balances and our vital national security concerns demand no less. In the future, we urge the DOJ 

and FBI to embrace, rather than resist, the healthy scrutiny that 

legitimate congressional oversight brings. 

One particular focus of our oversight efforts has been the Foreign 

Intelligence Surveillance Act (FISA). This report is focused on our 

FISA oversight for three reasons. First, the FISA is the law governing the exercise of the DOJ’s and FBI’s surveillance powers inside the United States to collect foreign intelligence information in 

15

the fight against terrorism and, as such, is vitally important to our 

national security. Second, the concerns revealed by our FISA oversight highlight the more systemic problems facing the FBI and the 

importance of close congressional oversight and scrutiny in helping 

to provide the resources and attention to correct such problems before they worsen. Third, members of this Committee led the effort 

to amend key provisions of the FISA in the USA PATRIOT Act, 

and the sunset or termination of those amendments in four years 

makes it imperative that the Committee carefully monitor how the 

FISA changes are being implemented. 

This report is in no way intended to be a comprehensive study 

of what did, or did not, ‘‘go wrong’’ before the 9/11 attacks. That 

important work was commenced by the Joint Intelligence Committee in the 107th Congress and will be continued by the National 

Commission on Terrorist Attacks (the ‘‘9/11 Commission’’) established by an act of Congress at the end of the last session. The 

focus of this report is different than these other important inquiries. We have not attempted to analyze each and every piece of intelligence or the performance of each and every member of the Intelligence Community prior to the 9/11 attacks. Nor have we limited our inquiry to matters relating only to the 9/11 attacks. Rather, we have attempted, based upon an array of oversight activities 

related to the performance of the FBI over an extended period of 

time, to highlight broader and more systemic problems within the 

DOJ and FBI and to ascertain whether these systemic shortcomings played a role in the implementation of the FISA prior to 

the 9/11 attacks. 

The FISA provides a statutory framework for electronic and 

other forms of surveillance in the context of foreign intelligence 

gathering. These types of investigations give rise to a tension between the government’s legitimate national security interests, on 

the one hand, and, on the other hand, constitutional safeguards 

against unreasonable government searches and seizures and excessive government intrusion into the exercise of free speech, 

associational, and privacy rights. Congress, through legislation, has 

sought to strike a delicate balance between national security and 

constitutionally protected interests in this sensitive arena. 

The oversight review this Committee has conducted during the 

107th Congress has uncovered a number of problems in the FISA 

process: a misunderstanding of the rules governing the application 

procedure, varying interpretations of the law among key participants, and a break-down of communication among all those involved in the FISA application process. Most disturbing is the lack 

of accountability that has permeated the entire application procedure. 

Our FISA oversight—especially oversight dealing with the time 

leading up to the 9/11 attacks—has reinforced the conclusion that 

the FBI must improve in the most basic aspects of its operations. 

Following is a list of our most important conclusions:

• FBI Headquarters did not properly support the efforts of its 

field offices in foreign intelligence matters. The role of FBI Headquarters in national security investigations is to ‘‘add value’’ in two 

ways: by applying legal and practical expertise in the processing of 

FISA surveillance applications and by integrating relevant inforVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00015 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
16

mation from all available intelligence sources to evaluate the significance of particular information and to supplement information 

from the field. In short, Headquarters’ role is to know the law and ‘‘connect the dots’’ from multiple sources both inside and outside 

the FBI. The FBI failed in this role before the 9/11 attacks. In fact, 

the bureaucratic hurdles erected by Headquarters (and DOJ) not 

only hindered investigations but contributed to inaccurate information being presented to the FISA Court, eroding the trust in the 

FBI of the special court that is key to the government’s enforcement efforts in national security investigations. • Key FBI agents and officials were inadequately trained in important aspects of not only FISA, but also fundamental aspects of 

criminal law. • In the time leading up to the 9/11 attacks, the FBI and DOJ 

had not devoted sufficient resources to implementing the FISA, so 

that long delays both crippled enforcement efforts and demoralized 

line agents. • The secrecy of individual FISA cases is certainly necessary, but 

this secrecy has been extended to the most basic legal and procedural aspects of the FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung 

the implementation of the FISA. Much more information, including 

all unclassified opinions and operating rules of the FISA Court and 

Court of Review, should be made public and/or provided to the Congress. • The FBI’s failure to analyze and disseminate properly the intelligence data in the agency’s possession rendered useless important work of some of its best field agents. In short, the FBI did not 

know what it knew. While we are encouraged by the steps commenced by Director Mueller to address this problem, there is more 

work to be done. • The FBI’s information technology was, and remains, inadequate to meet the challenges facing the FBI, and FBI personnel 

are not adequately trained to use the technology that they do possess. We appreciate that Director Mueller is trying to address this 

endemic problem, but past performance indicates that close congressional scrutiny is necessary to ensure that improvements continue to be made swiftly and effectively. 

• A deep-rooted culture of ignoring problems and discouraging 

employees from criticizing the FBI contributes to the FBI’s repetition of its past mistakes in the foreign intelligence field. There has 

been little or no progress at the FBI in addressing this culture. 

It is important to note that our oversight and conclusions in no 

way reflect on the fine and important work being done by the vast 

majority of line agents in the FBI. We want to commend the hardworking special agents and supervisory agents in the Phoenix and 

Minneapolis field offices for their dedication, professionalism, and 

initiative in serving the American people in the finest traditions of 

the FBI and law enforcement. Indeed, one of our most basic conclusions, both with respect to FISA and the FBI generally, is that institutional and management flaws prevent the FBI’s field agents 

from operating to their full potential.

Although the DOJ and FBI have acknowledged shortcomings in 

some of these areas and begun efforts to reform, we cannot stress 

17

strongly enough the urgency of this situation. The pace of improvement and reform must quicken. 

We are issuing this interim public report now so that this information is available to the American people and Members of Congress as we evaluate the implementation of the USA PATRIOT Act 

amendments to the FISA and additional pending legislation, including the FBI Reform Act. We also note that many of the same 

concerns set forth in this report have already led to legislative reforms. Included in these was the bipartisan proposal, first made in 

the Senate, to establish a cabinet level Department of Homeland 

Security, a proposal that is already a legislative reality. Our oversight also helped us to craft and pass, for the first time in 20 years, 

the 21st Century Department of Justice appropriations Authorization Act, P.L. 107–296, designed to support important reforms at 

the Department of Justice and the FBI. In addition, concerns 

raised by this Committee about the need for training on basic legal 

concepts, such as probable cause, spurred the FBI to issue an electronic communication on September 16, 2002, from the FBI’s Office 

of the General Counsel to all field offices explaining this critical 

legal standard. 

Additionally, this report may assist the senior leadership of the 

DOJ and FBI, and other persons responsible for ensuring that 

FISA is used properly in defending against international terrorists. 

II. OVERVIEW OF FBI OVERSIGHT IN THE 107TH CONGRESS

A. The Purposes of FBI Oversight: Enhancing Both Security and 

Liberty 

Beginning in the summer of 2001 and continuing through the remainder of the 107th Congress, the Senate Judiciary Committee 

conducted intensive, bipartisan oversight of the FBI. The purpose 

of this comprehensive oversight effort was to reverse the trend of 

the prior decades, during which the FBI operated with only sporadic congressional oversight focused on its handling of specific incidents, such as the standoffs at Ruby Ridge, Idaho, or Waco, 

Texas, and the handling of the Peter Lee and Wen Ho Lee espionage cases. It was the view of both Democrats and Republicans on 

the Judiciary Committee that the FBI would benefit from a more 

hands-on approach and that congressional oversight would help 

identify problems within the FBI as a first step to ensuring that 

appropriate resources and attention were focused on constructive 

solutions. In short, the goal of this oversight was to ensure that the 

FBI would perform at its full potential. Strong and bipartisan oversight, while at times potentially embarrassing to any law enforcement agency, strengthens an agency in the long run. It helps inform the crafting of legislation to improve an agency’s performance, 

and it casts light on both successes and problems in order to spur 

agencies to institute administrative reforms of their own accord. In 

short, the primary goal of FBI oversight is to help the FBI be as 

great and effective as it can be.

So, too, is oversight important in order to protect the basic liberties upon which our country is founded. Past oversight efforts, 

such as the Church Committee in the 1970s, have exposed abuses 

by law enforcement agencies such as the FBI. It is no coincidence 

18

that these abuses have come after extended periods when the public and the Congress did not diligently monitor the FBI’s activities. 

Even when agencies such as the FBI operate with the best of intentions (such as protecting our nation from foreign threats such as 

Communism in the 1950s and 1960s and fighting terrorism now), 

if left unchecked, the immense power wielded by such government 

agencies can lead them astray. Public scrutiny and debate regarding the actions of government agencies as powerful as the DOJ and 

the FBI are critical to explaining actions to the citizens to whom 

these agencies are ultimately accountable. In this way, congressional oversight plays a critical role in our democracy. 

The importance of the dual goals of congressional oversight—improving FBI performance and protecting liberty—have been driven 

home since the 9/11 attacks. Even prior to the terrorist attacks, the 

Judiciary Committee had begun oversight and held hearings that 

had exposed several longstanding problems at the FBI, such as the 

double standard in discipline between line agents and senior executive officials. The 9/11 attacks on our country have forever redefined the stakes riding upon the FBI’s success in fulfilling its mission to fight terrorism. It is no luxury that the FBI perform at its 

peak level—it is now a necessity. 

At the time, the increased powers granted to the FBI and other 

law enforcement agencies after 9/11 attacks, in the USA PATRIOT 

Act, which Members of this Committee helped to craft, and through 

the actions of the Attorney General and the President, have made 

it more important than ever that Congress fulfills its role in protecting the liberty of our nation. Everyone would agree that winning the war on terrorism would be a hollow victory indeed if it 

came only at the cost of the very liberties we are fighting to preserve. By carefully overseeing the DOJ’s and FBI’s use of its broad 

powers, Congress can help to ensure that the false choice between 

fundamental liberty and basic security is one that our government 

never takes upon itself to make. For these reasons, in the post-9/

11 world, FBI oversight has been, and will continue to be, more important than ever. 

B. Judiciary Committee FBI Oversight Activities in the 107th Congress 

1. Full Committee FBI Oversight Hearings 

Beginning in July 2001, after Senator Leahy became chairman, 

the Senate Judiciary Committee held hearings that focused on certain longstanding and systemic problems at the FBI. These included hearings concerning: (1) the FBI’s antiquated computer systems and its belated upgrade program; (2) the FBI’s ‘‘circle the 

wagons’’ mentality, wherein those who report flaws in the FBI are 

punished for their frankness; and (3) the FBI’s flawed internal disciplinary procedures and ‘‘double standard’’ in discipline, in which 

line FBI agents can be seriously punished for the same misconduct 

that only earns senior FBI executives a slap on the wrist. Such 

flaws were exemplified by the disciplinary actions taken (and not 

taken) by the FBI and DOJ after the incidents at Waco, Texas, and 

Ruby Ridge, Idaho, and the apparent adverse career effects experiVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00018 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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2 Hearing before the Senate Committee on the Judiciary, ‘‘Confirmation Hearing on the Nomination of Robert S. Mueller, III to be Director of the Federal Bureau of Investigation,’’ 107th 

Congress, 2nd Session 69 (July 30–31, 2001) (emphasis added). 3 Id., at p. 89.

enced by FBI agents participating in those investigations who answered the duty call to police their own. 

The Committee’s pre-9/11 FBI oversight efforts culminated with 

the confirmation hearings of the new FBI Director, Robert S. 

Mueller, III. Beginning on July 30, 2001, the Committee held two 

days of extensive hearings on Director Mueller’s confirmation and 

closely questioned Director Mueller about the need to correct the 

information technology and other problems within the FBI. In conducting these hearings, Committee Members understood the critical role of the FBI Director in protecting our country from criminal, terrorist, and clandestine intelligence activities and recognized 

the many challenges facing the new Director. 

Director Mueller was questioned very closely on the issue of congressional oversight, engaging in four rounds of questioning over 

two days. In response to one of Senator Specter’s early questions, 

Director Mueller stated ‘‘I understand, firmly believe in the right 

and the power of Congress to engage in its oversight function. It is 

not only a right, but it is a duty.’’ 2

In response to a later question, Director Mueller stated:

I absolutely agree that Congress is entitled to oversight 

of the ongoing responsibilities of the FBI and the Department of Justice. You mentioned at the outset the problems 

that you have had over a period of getting documents in 

ongoing investigations. And as I stated before and I’ll state 

again, I think it is incumbent upon the FBI and the Department of Justice to attempt to accommodate every request from Congress swiftly and, where it cannot accommodate or believes that there are confidential issues that 

have to be raised, to bring to your attention and articulate 

with some specificity, not just the fact that there’s ongoing 

investigation, not just the fact that there is an ongoing or 

an upcoming trial, but with specificity why producing the 

documents would interfere with either that trial or for 

some other reason or we believed covered by some issue of 

confidentiality.3

Incoming Director Mueller, at that time, frankly acknowledged 

that there was room for improvement in these areas at the FBI and 

vowed to cooperate with efforts to conduct congressional oversight 

of the FBI in the future. 

Director Mueller assumed his duties on September 4, 2001, just 

one week before the terrorist attacks. After the terrorist attacks, 

there was a brief break from FBI oversight, as the Members of the 

Judiciary Committee worked with the White House to craft and 

pass the USA PATRIOT Act. In that new law, the Congress responded to the DOJ’s and FBI’s demands for increased powers but 

granted many of those powers only on a temporary basis, making 

them subject to termination at the end of 2005. The ‘‘sunset’’ of the 

increased FISA surveillance powers reflected the promise that the 

Congress would conduct vigilant oversight to evaluate the FBI’s 

20

4Transcript, pp. 31–32 (emphasis added). 

performance both before and after 9/11. Only in that way could 

Congress and the public be assured that the DOJ and FBI needed 

the increased powers in the first place, and were effectively and 

properly using these new powers to warrant extension of the sunset. 

Passage of the USA PATRIOT Act did not solve the longstanding 

and acknowledged problems at the FBI. Rather, the 9/11 attacks 

created a new imperative to remedy systemic shortcomings at the 

FBI. Review of the FBI’s pre-9/11 performance is not conducted to 

assess blame. The blame lies with the terrorists. Rather, such review is conducted to help the FBI prevent future attacks by not repeating the mistakes of the past. Thus, the enactment of the USA 

PATRIOT Act did not obviate the need to oversee the FBI; it augmented that need. 

Within weeks of passage of the USA PATRIOT Act, the Senate 

Judiciary committee held hearings with Senior DOJ officials on implementation of the new law and other steps that were being taken 

by the Administration to combat terrorism. The Committee heard 

testimony on November 28, 2001, from Assistant Attorney General 

Michael Chertoff and, on December 6, 2001, from Attorney General 

Ashcroft. In response to written questions submitted in connection 

with the latter hearing, DOJ confirmed that shortly after the USA 

PATRIOT Act had been signed by the President on October 26, 

2001, DOJ began to press the congress for additional changes to 

relax FISA requirements, including expansion of the definition of 

‘‘foreign power’’ to include individual, non-U.S. persons engaged in 

international terrorism. DOJ explained that this proposal was to 

address the threat posed by a single foreign terrorist without an 

obvious tie to another person, group, or state overseas. Yet, when 

asked to ‘‘provide this Committee with information about specific 

cases that support your claim to need such broad new powers,’’ DOJ was silent in its response and named no specific cases showing such a need, nor did it say that it could provide such specificity 

even in a classified setting.4 In short, DOJ sought more power but 

was neither unwilling or unable to provide an example as to why. 

Beginning in March 2002, the Committee convened another series of hearings monitoring the FBI’s performance and its efforts to 

reform itself. On March 21, 2002, the Judiciary Committee held a 

hearing on the DOJ Inspector General’s report on the belated production of documents in the Oklahoma City bombing case. That 

hearing highlighted longstanding in the FBI;s information technology and training regarding the use of, and access to, records. It 

also highlighted the persistence of a ‘‘head-in-the-sand’ approach to 

problem, where shortcomings are ignored rather than addressed 

and the reporting of problems is discouraged rather than encouraged. 

On April 9, 2002, the Committee held a hearing on the Webster 

Commission’s report regarding former FBI Agent and Russian spy 

Robert Hansen’s activities. That hearing exposed a deep-seated cultural bias against the importance of security at the FBI. One important finding brought to light at that hearing was the highly inappropriate handling of sensitive FISA materials in the time after 

21

5Transcript, pp. 31–32 (emphasis added). 6Transcript, May 8, 2002, pp. 61–62. 

the 9/11 attacks. In short, massive amounts of the most sensitive 

and highly classified materials in the FBI’s possession were made 

available on an unrestricted basis to nearly all FBI employees. 

Even more disturbing, this action was taken without proper consultation with the FBI’s own security officials. 

On May 8, 2002, the Judiciary Committee held an oversight 

hearing at which FBI Director Mueller and Deputy Attorney General Thompson testified regarding their efforts to reshape the FBI 

and the DOJ to address the threat of terrorism. It was at this hearing that the so-called ‘‘Phoenix Memorandum’’ was publicly discussed for the first time. Director Mueller explained in response to 

one question:

[T]he Phoenix electronic communication contains suggestions from the agent as to steps that should be taken, or 

he suggested taking to look at other flight schools. . . . He 

made a recommendation that we initiate a program to look 

at flight schools. That was received at Headquarters. It 

was not acted on by September 11. I should say in passing 

that even if we had followed those suggestions at that 

time, it would not, given what we know since September 

11, have enabled us to prevent the attacks of September 

11. But in the same breath I should say that what we 

learned from instances such as that is much about the 

weaknesses of our approach to counterterrorism prior to 

September 11.5

In addition, Director Mueller first discussed at this hearing that 

FBI agents in Minnesota had been frustrated by Headquarters officials in obtaining a FISA warrant in the Zacharias Moussaoui investigation before the 9/11 attacks, and that one agent seeking the 

warrant had said that he was worried that Moussaoui would hijack 

an airplane and fly it into the World Trade center.6

On June 6, 2002, the Committee held another hearing at which 

Director Mueller testified further regarding the restructuring underway at the FBI. Significantly, that hearing also provided the 

first public forum for FBI Chief Division Counsel Coleen Rowley of 

the Minneapolis Division to voice constructive criticism about the 

FBI. Her criticisms, the subject of a lengthy letter sent to Director 

Mueller on May 21, 2002, which was also sent to Members of Congress, echoed many of the issues raised in this Committee’s oversight hearings. Special Agent Rowley testified about ‘‘careerism’’ at 

the FBI and a mentality at FBI Headquarters that led Headquarters agents to more often stand in the way of field agents than 

to support them. She cited the Moussaoui case as only the most 

high profile instance of such an attitude. Special Agent Rowley also 

described a FBI computer system that prevented agents from accessing their own records and conducting even the most basic types 

of searches. In short, Special Agent Rowley’s testimony reemphasized the importance of addressing the FBI’s longstanding problems, not hiding from them, in the post-9/11 era. 

As the head of the Department of Justice as a whole, the Attorney General has ultimate responsibility for the performance of the 

22

FBI. On July 25, 2002, the Judiciary Committee held an oversight 

hearing at which Attorney General Ashcroft testified. The Committee and the Attorney General engaged in a dialogue regarding 

the performance of the DOJ on many areas of interest, including 

the fight against terrorism. Among other things discussed at this 

hearing were the Attorney General’s plans to implement the Terrorism Information and Prevention System (TIPS), which would 

have enlisted private citizens to monitor ‘‘suspicious’’ activities of 

other Americans. After questioning on the subject, Attorney General Ashcroft testified that he would seek restrictions on whether 

and how information generated through TIPS would be retained. 

Later, as part of the Homeland Security legislation, TIPS was prohibited altogether. 

On September 10, 2002, the Committee held an oversight hearing specifically focusing on issues related to the FISA. Leading experts from the DOJ, from academia, and from the civil liberties and 

national security legal communities participated in a rare public 

debate on the FISA. That hearing brought before the public an important discussion about the reaches of domestic surveillance using 

FISA and the meaning of the USA PATRIOT Act. In addition, 

through the efforts of the Judiciary Committee, the public learned 

that this same debate was already raging in private. The FISA 

Court had rejected the DOJ’s proposed procedure for implementing 

the USA PATRIOT Act, and the FISA Court of Review was hearing 

its first appeal in its 20-year-plus existence to address important 

issues regarding these USA PATRIOT Act amendments to the 

FISA. The Committee requested that the FISA Court of Review 

publicly release an unclassified version of the transcript of the oral 

argument and its opinion, which the Court agreed to do and furnished to the Committee. Thus, only through the bipartisan oversight work of the Judiciary Committee was the public first informed of the landmark legal opinion interpreting the FISA and 

the USA PATRIOT Act amendments overruling the FISC’s position, accepting some of the DOJ’s legal arguments, but rejecting 

others. 

These are only the full Judiciary Committee hearings related to 

FBI oversight issues in the 107th Congress. The Judiciary Committee’s subcommittees also convened numerous, bipartisan oversight 

hearings relating to the FBI’s performance both before and after 9/

11. 

2. Other Oversight Activities: Classified Hearings, Written 

Requests, and Informal Briefings 

The Judiciary Committee and its Members have fulfilled their 

oversight responsibilities through methods other than public hearings as well. Particularly with respect to FISA oversight, Members 

of the Judiciary Committee and its staff conducted a series of 

closed hearings and briefings, and made numerous written inquiries on the issues surrounding both the application for a FISA 

search warrant of accused international terrorist Zacharias 

Moussaoui’s personal property before the 9/11 attacks and the post9/11 implementation of the USA PATRIOT Act. As with all of our 

FBI oversight, these inquiries were intended to review the performVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00022 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
23

7 Hearing of the Senate Judiciary Committee: Oversight of the Department of Justice, July 

25, 2002, Transcript, p. 86. 

ance of the FBI and DOJ in order to improve that performance in 

the future. 

The Judiciary Committee and its Members also exercised their 

oversight responsibilities over the DOJ and the FBI implementation of the FISA through written inquiries, written hearing questions, and other informal requests. These efforts included letters to 

the Attorney General and the FBI Director from Senator Leahy on 

November 1, 2001, and May 23, 2002, and from Senators Leahy, 

Specter, and Grassley on June 4, June 13, July 3, and July 31, 

2002. In addition, these Members sent letters requesting information from the FISA Court and FISA Court of Review on July 16, 

July 31, and September 9, 2002. Such oversight efforts are important on a day-to-day basis because they are often the most efficient 

means of monitoring the activities of the FBI and DOJ. 

3. DOJ and FBI Non-Responsiveness 

Particularly with respect to our FISA oversight efforts, we are 

disappointed with the non-responsiveness of the DOJ and FBI. Although the FBI and the DOJ have sometimes cooperated with our 

oversight efforts, often, legitimate requests went unanswered or the 

DOJ answers were delayed for so long or were so incomplete that 

they were of minimal use in the oversight efforts of this Committee. The difficulty in obtaining responses from DOJ prompted 

Senator Spector to ask the Attorney General directly, ‘‘how do we 

communicate with you and are you really too busy to respond?’’ 7

Two clear examples of such reticence on the part of the DOJ and 

the FBI relate directly to our FISA oversight efforts. First, Chairman Sensenbrenner and Ranking Member Conyers of the House 

Judiciary Committee issued a set of 50 questions on June 13, 2002, 

in order to fulfill the House Judiciary Committee’s oversight responsibilities to monitor the implementation of the USA PATRIOT 

Act, including its amendments to FISA. In connection with the July 

25, 2002, oversight hearing with the Attorney General, Chairman 

Leahy posed the same questions to the Department on behalf of the 

Senate Judiciary Committee. Unfortunately, the Department refused to respond to the Judiciary Committee with answers to many 

of these legitimate questions. Indeed, it was only after Chairman 

Sensenbrenner publicly stated that he would subpoena the material that the Department provided any response at all to many of 

the questions posed, and to date some questions remain unanswered. Senator Leahy posed a total of 93 questions, including the 

50 questions posed by the leadership of the House Judiciary Committee. While the DOJ responded to 56 of those questions in a series of letters on July 29, August 26, and December 23, 2002, thirty-seven questions remain unanswered. In addition, the DOJ attempted to respond to some of these requests by providing information not to the Judiciary Committees, which had made the request, 

but to the Intelligence Committees. Such attempts at forum shopping by the Executive Branch are not a productive means of facilitating legitimate oversight. 

24

8The Final Report, dated December 10, 2002, of the Joint Inquiry of the House and Senate 

Intelligence Committees (hereafter ‘‘Final Report’’) noted a related issue of ‘‘excessive classification’’ and urged the Attorney General, and other Federal offices, to report to the Intelligence 

Committees on ‘‘a new and more realistic approach’’ to designating sensitive and classified information and ‘‘include proposals to protect against the use of the classification process as a shield 

to protect agency self-interest.’’ (Recommendations, p. 13). 9 Another example in which DOJ and FBI have resisted responding to the Committee’s questions related to press reports that the Attorney General, on September 10, 2001, rejected the 

FBI’s request for an additional $58 million increase in counterterrorism programs. In order to 

assess the accuracy of these reports, Senator Leahy requested information in written questions 

in connection with the July 25, 2002 oversight hearing, asking, in pertinent part: ‘‘The FBI had 

previously submitted a request to the Department for increases for (a) language services 

($8,852,000); (b) field counterterrorism investigations ($28,066,000); (c) intelligence production 

(Field and HQ IRSs) ($20,894,000); (d) security ($137,566,000); (e) counterintelligence initiative 

($30,355,000); and (f) secure telephone equipment ($6,501,000). Did the September 10th, request 

to OMB include any of these increases that the FBI had requested and, if so, which ones?’’ DOJ 

has not provided answers to this or related questions. 

Second, the FBI and DOJ repeatedly refused to provide Members 

of the Judiciary Committee with a copy of the FISA Court’s May 

17, 2002, opinion rejecting the DOJ’s proposed implementation of 

the USA PATRIOT Act’s FISA amendments. This refusal was made 

despite the fact that the opinion, which was highly critical of aspects of the FBI’s past performance on FISA warrants, was not 

classified and bore directly upon the meaning of provisions in the 

USA PARIOT Act authored by Members of the Judiciary Committee. Indeed, the Committee eventually had to obtain the opinion 

not from the DOJ but directly from the FISA Court, and it was 

only through these efforts that the public was first made aware of 

the important appeal being pursued by the DOJ and the legal positions taken by the Department on the FISA Amendments.8

In both of these instances, and in others, the DOJ and FBI have 

made exercise of our oversight responsibilities difficult.9 It is our 

sincere hope that the FBI and DOJ will reconsider their approach 

to congressional oversight in the future. The Congress and the 

American people deserve to know that their government is doing. 

Certainly, the Department should not expect Congress to be a ‘‘rubber stamp’’ on its requests for new or expanded powers if requests 

for information about how the Department has handled its existing 

powers have been either ignored or summarily paid lip service. 

III. FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS

PLAGUING THE FBI

A. Overview and Conclusions 

The Judiciary Committee held a series of classified briefings for 

the purpose of reviewing the processing of FISA applications before 

the terrorist attacks on September 11, 2001. The Judiciary Committee sought to determine whether any problems at the FBI in the 

processing of FISA applications contributed to intelligence failures 

before September 11th; to evaluate the implementation of the 

changes to FISA enacted pursuant to the USA PATRIOT Act; and 

to determine whether additional legislation is necessary to improve 

this process and facilitate congressional oversight and public confidence in the FISA and the FBI. 

We specifically sought to determine whether the systemic problems uncovered in our FBI oversight hearings commenced in the 

summer of 2001 contributed to any shortcomings that may have affected the FBI counterterrorism efforts prior to the 9/11 attacks. 

25

10The Joint Inquiry’s finding on this point is particularly apt: ‘‘During the summer of 2001, 

when the Intelligence Community was bracing for an imminent al-Qa’ida attack, difficulties 

with FBI applications for Foreign Intelligence Surveillance Act (FISA) surveillance and the FISA 

process led to a diminished level of coverage of suspected al-Qa’ida operatives in the United 

States. The effect of these difficulties was compounded by the perception that spread among FBI 

personnel at Headquarters and the field offices that the FISA process was lengthy and fraught 

with peril.’’ (Final Report, Findings, p. 8). 

Not surprisingly, we conclude that they did. Indeed, in many ways 

the DOJ and FBI’s shortcomings in implementing the FISA—including but not limited to the time period before the 9/11 attacks—

present a compelling case for both comprehensive FBI reform and 

close congressional oversight and scrutiny of the justification for 

any further relaxation of FISA requirements. FISA applications are 

of the utmost importance to our national security. Our review suggests that the same fundamental problems within the FBI that 

have plagued the agency in other contexts also prevented both the 

FBI and DOJ from aggressively pursuing FISA applications in the 

period before the 9/11 attacks. Such problems caused the submission of key FISA applications to the FISA Court to have been significantly delayed or not made. More specifically, our concerns that 

the FBI and DOJ did not make effective use of FISA before making 

demands on the Congress for expanded FISA powers in the USA 

PATRIOT Act are bolstered by the following findings: 

(1) The FBI and Justice Department were setting too high a 

standard to establish that there is ‘‘probable cause’’ that a person may be an ‘‘agent of a foreign power’’ and, therefore, may 

be subject to surveillance pursuant to FISA; 

(2) FBI agents and key Headquarters officials were not sufficiently trained to understand the meanings of crucial legal 

terms and standards in the FISA process; 

(3) Prior problems between the FBI and the FISA Court that 

resulted in the Court barring one FBI agent from appearing 

before it for allegedly filing inaccurate affidavits may have 

‘‘chilled’’ the FBI and DOJ from aggressively seeking FISA 

warrants (although there is some contradictory information on 

this matter, we will seek to do additional oversight on this 

question); 10

(4) FBI Headquarters fostered a culture that stifled rather 

than supported aggressive and creative investigative initiatives 

from agents in the field; and 

(5) The FBI’s difficulties in properly analyzing and disseminating information in its possession caused it not to seek FISA 

warrants that it should have sought. These difficulties are due 

to: 

(a) a lack of proper resources dedicated to intelligence 

analysis; 

(b) a ‘‘stove pipe’’ mentality where crucial intelligence is 

pigeonholed into a particular unit and may not be shared 

with other units; 

(c) High turnover of senior agents at FBI Headquarters 

within critical counterterrorism and foreign intelligence 

units; 

(d) Outmoded information technology that hinders access 

to, and dissemination of, important intelligence; and 

26

11SA Rowley notes in the first paragraphs of the letter, ‘‘I have deep concerns that a delicate 

and subtle shading/skewing of facts by you and others at the highest levels of FBI management 

has occurred and is occurring. * * * I base my concerns on * * * your congressional testimony 

and public comments.’’ However, we wish to be clear that we do not believe that Director 

Mueller knowingly provided inaccurate or incomplete information to the Committee. 

(e) A lack of training for FBI agents to know how to use, 

and a lack of requirements that they do use, the technology available to search for and access relevant information.

We have found that, in combination, all of these factors contributed to the intelligence failures at the FBI prior to the 9/11 attacks. 

We are also conscious of the extraordinary power FISA confers 

on the Executive branch. FISA contains safeguards, including judicial review by the FISA Court and certain limited reporting requirements to congressional intelligence committees, to ensure that 

this power is not abused. Such safeguards are no substitute, however, for the watchful eye of the public and the Judiciary Committees, which have broader oversight responsibilities for DOJ and the 

FBI. In addition to reviewing the effectiveness of the FBI’s use of 

its FISA power, this Committee carries the important responsibility of checking that the FBI does not abuse its power to conduct 

surveillance within our borders. Increased congressional oversight 

is important in achieving that goal. 

From the outset, we note that our discussion will not address any 

of the specific facts of the case against Zacharias Moussaoui that 

we have reviewed in our closed inquiries. That case is still pending 

trial, and, no matter how it is resolved, this Committee is not the 

appropriate forum for adjudicating the allegations in that case. Any 

of the facts recited in this report that bear on the substance of the 

Moussaoui case are already in the public record. To the extent that 

this report contains information we received in closed sessions, that 

information bears on abstract, procedural issues, and not any substantive issues relating to any criminal or national security investigation or proceeding. This is an interim report of what we have 

discovered to date. We hope to and should continue this important 

oversight in the 108th Congress. 

B. Allegations Raised by Special Agent Rowley’s Letter 

The Judiciary Committee had initiated its FISA oversight inquiry several months before the revelations in the dramatic letter 

sent on May 21, 2002, to FBI Director Mueller by Special Agent 

Coleen Rowley. Indeed, it was this Committee’s oversight about the 

FBI’s counterintelligence operations before the 9/11 attacks that in 

part helped motivate SA Rowley to write this letter to the Directory.11

The observations and critiques of the FBI’s FISA process in this 

letter only corroborated problems that the Judiciary Committee 

was uncovering. In her letter, SA Rowley detailed the problems the 

Minneapolis agents had in dealing with FBI Headquarters in their 

unsuccessful attempts to seek a FISA warrant for the search of 

Moussaoui’s lap top computer and other personal belongings. These 

attempts proved fruitless, and Moussaoui’s computer and personal 

belongings were not searched until September 11th, 2001, when 

27

12Letter from Special Agent Coleen Rowley to FBI Director Robert S. Mueller, III, dated May 

21, 2002, p. 3 (Rowley Letter). All citations to SA Rowley’s letter are from a version of the letter 

that was released to the Judiciary Committee on June 6, 2002, by the DOJ and with classified 

or otherwise protected information redacted. This letter is attached as Exhibit A. 13 Rowley Letter, p. 6, fn. 6. 

the Minneapolis agents were able to obtain a criminal search warrant after the attacks of that date. According to SA Rowley, with 

the exception of the fact of those attacks, the information presented 

in the warrant application establishing probable cause for the 

criminal search warrant was exactly the same as the facts that FBI 

Headquarters earlier had deemed inadequate to obtain a FISA 

search warrant.12

In her letter, SA Rowley raised many issued concerning the efforts by the agents assigned to the Minneapolis Field Office to obtain a FISA search warrant for Moussaoui’s personal belongings. 

Two of the issues she raised were notable. First, SA Rowley corroborated that many of the cultural and management problems 

within the FBI (including what she referred to as ‘‘careerism’’) have 

significant effects on the FBI’s law enforcement and intelligence 

gathering activities. This led to a perception among the Minneapolis agents that FBI Headquarters personnel had frustrated 

their efforts to obtain a FISA warrant by raising unnecessary objections to the information submitted by Minneapolis, modifying and 

removing that information, and limiting the efforts by the Minneapolis Field Office to contact other agencies for relevant information to bolster the probable cause for the warrant. These concerns 

echoed criticism that this Committee has heard in other contexts 

about the culture of FBI management and the effect of the bureaucracy in stifling initiative by FBI agents in the field. 

In making this point, SA Rowley provided specific examples of 

the frustrating delays and roadblocks erected by Headquarters 

agents in the Moussaoui investigation:

For example at one point, the Supervisory Special Agent 

at FBIHQ posited that the French information could be 

worthless because it only identified Zacharias Moussaoui 

by name and he, the SSA, didn’t know how many people 

by that name existed in France. A Minneapolis agent attempted to surmount that problem by quickly phoning the 

FBI’s Legal Attache (Legat) in Paris, France, so that a 

check could be made of the French telephone directories. 

Although the Legat in France did not have access to all of 

the French telephone directories, he was able to quickly 

ascertain that there was only one listed on the Paris directory. It is not known if this sufficiently answered the question, for the SSA continued to find new reasons to stall.13

Eventually, on August 28, 2001, after a series of e-mails 

between Minneapolis and FBIHQ, which suggest that the 

FBIHQ SSA deliberately further undercut the FISA effort 

by not adding the further intelligence information which 

he had promised to add that supported Moussaoui’s foreign 

power connection and making several changes in the wording of the information that had been provided by the Minneapolis agent, the Minneapolis agents were notified that 

the NSLU Unit Chief did not think there was sufficient 

28

14 Rowley Letter, p. 7. 15 Rowley Letter, p. 4. 

evidence of Moussaoui’s connection to a foreign power. 

Minneapolis personnel are, to this date, unaware of the 

specifics of the verbal presentations by the FBIHQ SSA to 

NSLU or whether anyone in NSLU ever was afforded the 

opportunity to actually read for him/herself all of the information on Moussaoui that had been gathered by the Minneapolis Division and [redacted; classified]. Obviously[,] 

verbal presentations are far more susceptible to mis-characterization and error.14

Even after the attacks had commenced, FBI Headquarters discouraged Minneapolis from securing a criminal search warrant to 

examine Moussaoui’s belongs, dismissing the coordinated attack on 

the World Trade Center and Pentagon as a coincidence.15

Second, SA Rowley’s letter highlighted the issue of the apparent 

lack of understanding of the applicable legal standards for establishing ‘‘probable cause’’ and the requisite statutory FISA requirements by FBI personnel in the Minneapolis Division and at FBI 

Headquarters. This issue will be discussed in more detail below. 

C. Results of Investigation 

1. The Mishandling of the Moussaoui FISA Application 

Apart from SA Rowley’s letter and her public testimony, the Judiciary Committee and its staff found additional corroboration that 

many of her concerns about the handling of the Moussaoui FISA 

application for a search warrant were justified. 

At the outset, it is helpful to review how Headquarters ‘‘adds 

value’’ to field offices in national security investigations using FISA 

surveillance tools. Headquarters has three functions in such investigations. The first function is the ministerial function of actually 

assembling the FISA application in the proper format for review by 

the DOJ’s Office of Intelligence Policy and Review OIPR and the 

FISA Court. The other two functions are more substantive and add 

‘‘value’’ to the FISA application. The first substantive function is to 

assist the field by being experts on the legal aspects of FISA, and 

to provide guidance to the field as to the information needed to 

meet the statutory requirements of FISA. The second function is to 

supplement the information from the field in order to establish or 

strengthen the showing that there is ‘‘probable cause’’ that the 

FISA target was an ‘‘agent of a foreign power,’’ by integrating additional relevant intelligence information both from within the FBI 

and from other intelligence or law enforcement organizations outside the FBI. It is with respect to the latter, substantive functions 

that Headquarters fell short in the Moussaoui FISA application 

and, as a consequence, never got to the first, more ministerial, 

function.

Our investigation revealed that the following events occurred in 

connection with this FISA application. We discovered that the Supervisory Special Agent (SSA) involved in reviewing the Moussaoui 

FISA request was assigned to the Radical Fundamentalist Unit 

(RFU) of the International Terrorism Operations Section of the 

29

16 Rowley Letter, p. 7. This is yet another example of a hurdle being erected to effective congressional oversight. 17 Joint Inquiry Hearing, Testimony of Eleanor Hill, Staff Director, September 24, 2002, p. 19: 

‘‘The [FBI] attorneys also told the Staff that, if they had been aware of the Phoenix memo, they 

would have forwarded the FISA request to the Justice Department’s Office of Intelligence Policy 

Review (OIPR). They reasoned that the particulars of the Phoenix memo changed the contest 

of the Moussaoui investigation and made a stronger case for the FISA warrant. None of them 

saw the Phoenix memo before September 11.’’

FBI’s Counterterrorism Division. The Unit Chief of the RFU was 

the SSA’s immediate supervisor. When the Minneapolis Division 

submitted its application for the FISA search warrant for 

Moussaoui’s laptop computer and other property, the SSA was assigned the responsibility of processing the application for approval. 

Minneapolis submitted its application for the FISA warrant in the 

form of a 26-page Electronic Communication (EC), which contained 

all of the information that the Minneapolis agents had collected to 

establish that Moussaoui was an agent of a foreign power at the 

time. The SSA’s responsibilities included integrating this information submitted by the Minneapolis division with information from 

other sources that the Minneapolis agents were not privy to, in 

order to establish there was probably cause that Moussaoui was an 

agent of a foreign power. In performing this fairly straightforward 

task, FBI Headquarters personnel failed miserably in at least two 

ways. 

First, most surprisingly, the SSA never presented the information submitted by Minneapolis and from other sources in its written, original format to any of the FBI’s attorneys in the National 

Security Law Unit (NSLU). The Minneapolis agents has submitted 

their information in the 26-page EC and a subsequent letterhead 

memorandum (LHM), but neither was shown to the attorneys. Instead, the SSA relied on short, verbal briefings to the attorneys, 

who opined that based on the information provided verbally by the 

SSA they could not establish that there was probably cause that 

Moussaoui was an agent of a foreign power. Each of the attorneys 

in the NSLU stated they did not receive documents on the 

Moussaoui FISA, but instead only received a short, verbal briefing 

from the SSA. As SA Rowley noted, however, ‘‘verbal presentations 

are far more susceptible to mis-characterization and error.’’ The failure of the SSA to provide the 26-page Minneapolis EC 

and the LHM to the attorneys, and the failure of the attorneys to 

review those documents, meant that the consideration by Headquarters officials of the evidence developed by the Minneapolis 

agents was truncated. The Committee has requested, but not yet 

received, the full 26-page Minneapolis EC (even, in explicably, in 

a classified setting).16

Second, the SSA’s task was to help bolster the work of the Minneapolis agents and collect information that would establish probably cause that a ‘‘foreign power’’ existed, and that Moussaoui was 

its ‘‘agent.’’ Indeed, sitting in the FBI computer system was the 

Phoenix memorandum, which senior FBI officials have conceded 

would have provided sufficient additional context to Moussaoui’s 

conduct to have established probably cause.17 Yet, neither the SSA 

nor anyone else at Headquarters consulted about the Moussaoui 

application ever conducted any computer searches for electronic or 

other information relevant to the application. Even the much toutVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00029 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
30

18The Joint Inquiry by the Senate and House Select Committee on Intelligence similarly concluded that the FBI needs to ‘‘establish and sustain independent career tracks within the FBI 

that recognize and provide incentives for demonstrated skills and performance of 

counterterrorism agents and analysts; * * * implement training for agents in the effective use 

of analysts and analysis in their work; * * * improve national security law training of FBI personnel; * * * and finally solve the FBI’s persistent and incapacitating information technology 

problems.’’ (Final Report, Recommendations, p. 6). 19This finding was echoed by the Joint intelligence Committee: ‘‘In August 2001, the FBI’s Minneapolis field office, in conjunction with the INS, detained Zacharias Moussaoui, a French 

national who had enrolled in flight training in Minnesota because FBI agents there suspected 

that Moussaoui was involved in a hijacking plot. FBI Headquarters attorneys determined that 

there was not probable cause to obtain a court order to search Moussaoui’s belongings under 

the Foreign Intelligence Surveillance Act (FISA). However, personnel at FBI Headquarters, including the Radical Fundamentalist Unit and the National Security Law Unit, as well as agents 

in the Minneapolis field office, misunderstood the legal standard for obtaining an order under 

FISA.’’ (Final Report, Findings, pp. 3–4). 20The Joint Intelligence Committee reached a similar conclusion and urged the Attorney General and the Director of the FBI to ‘‘take action necessary to ensure that: the Office of Intelligence Policy and Review and other Department of Justice components provide in-depth training to the FBI and other members of the Intelligence Community regarding the use of the Foreign Intelligence Surveillance Act (FISA) to address terrorist threats to the United States.’’ (Final Report, Recommendations, p. 8). 

ed ‘‘Woods Procedures’’ governing the procedures to be followed by 

FBI personnel in preparing FISA applications do not require Headquarters personnel to conduct even the most basic subject matter 

computer searches or checks as part of the preparation and review 

of FISA applications. 

2. General Findings. 

We found that key FBI personnel involved in the FISA process 

were not properly trained to carry out their important duties. In 

addition, we found that the structural, management, and resource 

problems plaguing the FBI in general contributed to the intelligence failures prior to the 9/11 attacks.18 Following are some of 

the most salient facts supporting these conclusions. 

First, key FBI personnel responsible for protecting our country 

against terrorism did not understand the law. The SSA at FBI 

Headquarters responsible for assembling the facts in support of the 

Moussaoui FISA application testified before the Committee in a 

closed hearing that he did not know that ‘‘probable cause’’ was the 

applicable legal standard for obtaining a FISA warrant. In addition, he did not have a clear understanding of what the probable 

cause standard meant. The SSA was not a lawyer, and he was relying on FBI lawyers for their expertise on what constituted probable 

cause. In addition to not understanding the probable cause standard, the SSA’s supervisor (the Unit Chief) responsible for reviewing 

FISA applications did not have a proper understanding of the legal 

definition of the ‘‘agent of a foreign power’’ requirement.19 Specifically, he was under the incorrect impression that the statute required a link to an already identified or ‘‘recognized’’ terrorist organization, an interpretation that the FBI and the supervisor himself 

admitted was incorrect. Thus, key FBI officials did not have a proper understanding of either the relevant burden of proof (probable 

cause) or the substantive element of proof (agent of a foreign 

power). This fundamental breakdown in training on an important 

intelligence matter is of serious concern to this Committee.20

Second, the complaints contained in the Rowley letter about 

problems in the working relationship between field offices and FBI 

Headquarters are more widespread. There must be a dynamic relationship between Headquarters and field offices with Headquarters 

31

providing direction to the efforts of agents in the field when required. At the same time, Headquarters personnel should serve to 

support field agents, not to stifle initiative by field agents and 

hinder the progress of significant cases. The FBI’s Minneapolis office was not alone in this complaint. Our oversight also confirmed 

that agents from the FBI’s Phoenix office, whose investigation and 

initiative resulted in the so-called ‘‘Phoenix Memorandum,’’ warning about suspicious activity in U.S. aviation schools, also found 

their initiative dampened by a non-responsive FBI Headquarters. 

So deficient was the FISA process that, according to at least one 

FBI supervisor, not only were new applications not acted upon in 

a timely manner, but the surveillance of existing targets of interest 

was often terminated, not because the facts no longer warranted 

surveillance, but because the application for extending FISA surveillance could not be completed in a timely manner. Thus, targets 

that represented a sufficient threat to national security that the 

Department had sought, and a FISA Court judge had approved, a 

FISA warrant were allowed to break free of surveillance for no reason other than the FBI and DOJ’s failure to complete and submit 

the proper paper work. This failure is inexcusable. 

Third, systemic management problems at FBI Headquarters led 

to a lack of accountability among senior FBI officials. A revolving 

door at FBI Headquarters resulted in agents who held key supervisory positions not having the required specialized knowledge to 

perform their jobs competently. A lack of proper communication 

produced a system where no single person was held accountable for 

mistakes. Therefore, there was little or no incentive to improve performance. Fourth, the layers of FBI and DOJ bureaucracy also 

helped lead to breakdowns in communication and serious errors in 

the materials presented to the FISA Court. The Committee learned 

that in the year before the Moussaoui case, one FBI supervisor was 

barred from appearing before the FISA due to inaccurate information presented in sworn affidavits to the Court. DOJ explained in 

a December 23, 2002, response to written questions from the July 

25, 2002, oversight hearing that:

One FBI supervisory special agent has been barred from 

appearing before the Court. In March of 2001, the government informed the Court of an error contained in a series 

of FISA applications. This error arose in the description of 

a ‘‘wall’’ procedure. The Presiding Judge of the Court at 

the time, Royce Lamberth, wrote to the Attorney General 

expressing concern over this error and barred one specifically-named FBI agent from appearing before the Court as 

a FISA affiant. * * * FBI Director Freeh personally met 

twice with then-Presiding Judge Lamberth to discuss the 

accuracy problems and necessary solutions.

As the Committee later learned from review of the FISA Court’s 

May 17, 2002, opinion, that Court had complained of 75 inaccuracies in FISA affidavits submitted by the FBI, and the DOJ and FBI 

had to develop new procedures to ensure accuracy in presentations 

to that Court. These so-called ‘‘Woods Procedures’’ were declassified 

at the request of the authors and were made publicly available at 

the Committee’s hearing on June 6, 2002. As DOJ further exVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00031 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
32

21We did hear testimony indicating that there may have been a ‘‘chilling effect.’’ Special Agent 

G (of the Minneapolis office) testified that ‘‘it seemed to [Special Agent G] that the changes [the 

SSA] had made’’ to the facts supplied by Minneapolis in a memorandum ‘‘were designated to 

undersell what we had seen Moussaoui preparing to do.’’ Additionally, at an earlier closed briefing for committee staff, a senior headquarters FBI agent stated that he had advised his subordinates to be particularly careful with the handling of FISA applications. However, we also heard 

testimony from senior FBI and Justice Department attorneys that they did not perceive a 

‘‘chilling effect’’ or drop in the number of FISA applications. We believe further inquiry as to 

this issue is warranted. 

plained in its December 23, 2002, answers to written questions 

submitted on July 25, 2002:

On April 6, 2001, the FBI disseminated to all field divisions and relevant Headquarters divisions a set of new 

mandatory procedures to be applied to all FISAs within 

the FBI. These procedures known as the ‘‘Woods procedures,’’ are designed to help minimize errors in and ensure 

that the information provided to the Court is accurate. 

* * * They have been declassified at the request of your 

committee.

DOJ describes the inaccuracies cited in the FISA Court opinion 

as related to ‘‘errors in the ‘wall’ procedure’’ to keep separate information used for criminal prosecution and information collected 

under FISA and used for foreign intelligence. However, this does 

not appear to be the only problem the FBI and DOJ were having 

in the use of FISA. 

An FBI document obtained under the Freedom of Information 

Act, which is attached to this report as Exhibit E, suggests that the 

errors committed were far broader. The document is a memorandum dated April 21, 2002, from the FBI’s Counterterrorism Division, that details a series of inaccuracies and errors in handling 

FISA applications and wiretaps that have nothing whatsoever to do 

with the ‘‘wall.’’ Such mistakes include videotaping a meeting when 

videotaping was not allowed under the relevant FISA Court order, 

continuing to intercept a person’s email after there was no authorization to do so, and continuing a wiretap on a cell phone even 

after the phone number had changed to a new subscriber who 

spoke a different language from the target. 

This document highlights the fact apart from the problems with 

applications made to the FISC, that the FBI was experiencing more 

systemic problems related to the implementation of FISA orders. 

These issues were unrelated to the legal questions surrounding the 

‘‘wall,’’ which was in effect long before 1999. The document notes 

that the number of inaccuracies grew by three-and-one-half times 

from 1999 to 2000. We recommend that additional efforts to correct 

the procedural, structural, and training problems in the FISA process would go further toward ensuring accuracy in the FISA process 

than simply criticizing the state of the law.

One legitimate question is whether the problems inside the FBI 

and between the FBI and the FISA Court either caused FBI Headquarters to be unduly cautious in proposing FISA warrants or eroded the FISA Court’s confidence in the DOJ and the FBI to the 

point that it affected the FBI’s ability to conduct terrorism and intelligence investigations effectively.21 SA Rowley opines in her letter that in the year before ‘‘the September 11th acts of terrorism, 

numerous alleged IOB [Intelligence Oversight Board] violations on 

33

22 ‘‘[O]n the basis of the facts submitted by the applicant there is probable cause to believe 

that—* * * the target of the [electronic surveillance or physical search] is a foreign power or 

an agent of a foreign power * * *’’ 50 U.S.C. Section 1805 (electronic surveillance); Section 1824 

(physical search). 23 (b) ‘‘Agent of a foreign power’’ means— (2) any person who— (C) knowingly engages in sabotage or international terrorism, or activities that are 

in preparation therefore, or on behalf of a foreign power; 

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities 

described in subparagraph (A), (B), or (C). 

50 U.S.C. App. Section 1801(b) (a ‘‘non-U.S. person’’ is, in effect, a non-resident alien) (emphasis 

added). 24 (a) ‘‘Foreign power’’ means—***

(4) a group engaged in international terrorism or activities in preparation therefor; 

(c) ‘‘International terrorism’’ means activities that—

(1) involve violent acts of acts dangerous to human life that are a violation of the criminal 

laws of the Untied States or of any State, or that would be a criminal violation if committed 

within the jurisdiction of the United States or any State; 

(2) appear to be intended—

(A) to intimidate or coerce a civilian population; 

(B) to influence the policy of a government by intimidation or coercion; or 

(C) to affect the conduct of a government by assassination or kidnapping; and 

(3) occur totally outside the United States, or transcend national boundaries in terms of 

the means by which they are accomplished, the persons they appear intended to coerce or 

intimidate, or the locale in which their perpetrators operate or seek asylum. 

Continued

the part of FBI personnel had to be submitted to the FBI’s office 

of Professional Responsibility (OPR) as well as the IOB. I believe 

the chilling effect upon all levels of FBI agents assigned to intelligence matters and their managers hampered us from aggressive 

investigation of terrorists.’’ (Rowley letter, pp. 7–8, fn. 7). Although 

the belated release of the FISA Court’s opinion of May 17, 2002, 

provided additional insight into this issue, further inquiry is needed. 

Fifth, the FBI’s inability to properly analyze and disseminate information (even from and between its own agents) rendered key information that it collected relatively useless. Had the FBI put together the disparate strands of information that agents from 

around the country had furnished to Headquarters before September 11, 2001, additional steps could certainly have been taken 

to prevent the 9/11 attacks. So, while no one can say with certainty 

that the 9/11 attacks could have been prevented, in our view, it is 

also beyond reasonable dispute that more could have been done in 

the weeks before the attacks to try to prevent them.

Certain of our findings merit additional discussion, and such discussion follows. 

3. FBI’s Misunderstanding of Legal Standards Applicable to 

the FISA 

a. The FISA Statutory Standard: ‘‘Agent of a Foreign Power’’

In order to obtain either a search warrant or an authorization to 

conduct electronic surveillance pursuant to FISA, the FBI and Justice Department must establish before the FISA Court (‘‘FISC’’) 

probable cause that the targeted person is an ‘‘agent of a foreign 

power.’’ 22 An agent of a foreign power is defined as ‘‘any person 

who * * * knowingly aids or abets any person in the conduct of 

[certain] activities.’’ 23 Those certain activities include ‘‘international terrorism,’’ and one definition of ‘‘foreign power’’ includes 

groups that engage in international terrorism.24

34

50 U.S.C. § App. 1801. The standard for obtaining FISA orders differs from the requirements 

in the criminal context. See Fed. R. Cr. P. 41 (criminal search warrant); 18 U.S.C. § 2518 (electronic surveillance).

Accordingly, in the Moussaoui case, to obtain a FISA warrant the 

FBI had to collect only enough evidence to establish that there was 

‘‘probable cause’’ to believe that Moussaoui was the ‘‘agent’’ of an ‘‘international terrorist group’’ as defined by FISA. 

However, even the FBI agents who dealt most with FISA did not 

correctly understand this requirement. During a briefing with Judiciary Committee staff in February 2002, the Headquarters 

counterterrorism Unit Chief of the unit responsible for handling 

the Moussaoui FISA application stated that with respect to international terrorism cases, FISA warrants could only be obtained for 

‘‘recognized’’ terrorist groups (presumably those identified by the 

Department of State or by the FBI itself or some other government 

agency). The Unit Chief later admitted that he knew that this was 

an incorrect understanding of the law, but it was his understanding at the time the application was pending. Additionally, 

during a closed hearing on July 9, 2002, the Supervisory Special 

Agent (‘‘SSA’’) who actually handled the Moussaoui FISA application at Headquarters also mentioned that he was trying to establish whether Moussaoui was an ‘‘agent of a recognized foreign 

power’’ (emphasis added). 

Nowhere, however, does the statutory definition require that the 

terrorist group be an identified organization that is already recognized (such as by the United States Department of State) as engaging in terrorist activities. Indeed, even the FBI concedes this point. 

Thus, there was no support whatsoever for key FBI officials’ incorrect understanding that the target of FISA surveillance must be 

linked to such an identified group in the time before 9/11. This misunderstanding colored the handling of requests from the field to 

conduct FISA surveillance in the crucial weeks before the 9/11 attacks. Instead of supporting such an application, key Headquarters 

personnel asked the field agents working on this investigation to 

develop additional evidence to prove a fact that was unnecessary 

to gain judicial approval under FISA. It is difficult to understand 

how the agents whose job included such a heavy FISA component 

could not have understood that statute. It is difficult to understand 

how the FBI could have so failed its own agents in such a crucial 

aspect of their training. 

The Headquarters personnel misapplied the FISA requirements. 

In the context of this case, the foreign power would be an international terrorist group, that is, ‘‘a group engaged in international 

terrorism or activities in preparation therefore.’’ A ‘‘group’’ is not 

defined in the FISA, but in common parlance, and using other legal 

principles, including criminal conspiracy, a group consists of two or 

more persons whether identified or not. It is our opinion that such 

a ‘‘group’’ may exist, even if not a group ‘‘recognized’’ by the Department of State. 

The SSA’s other task would be to help marshal evidence showing 

probable cause that Moussaoui was an agent of that group. In applying the ‘‘totality of the circumstances,’’ as defined in the case of 

Illinois v. Gates, 462 U.S. 213 (1983), any information available 

about Moussaoui’s ‘‘actual contacts’’ with the group should have 

35

25The Supreme Court’s leading case on probable cause; it is discussed in more detail in the 

next section of this report. 26Senator SPECTER. * * * [I]s an Islam fundamentalist who advocates ‘‘jihad’’ a terrorist? 

[Attorney #1]. On that description alone, I would say I could not say so, Senator. I would have 

my suspicions, I would be concerned, but I need to see what a person is doing. I need to see 

some indicia that they are willing to commit violence and not just talk about it. 

Question. But you would have your suspicions. 

[Attorney #1]. Yes, sir. 

been considered in light of other information the FBI had in order 

to understand and establish the true probable nature of those contacts.25 It is only with consideration of all the information known 

to the FBI that Moussaoui’s contacts with any group could be properly characterized in determining whether he was an agent of such 

a group. 

In making this evaluation, the fact, as recited in the public indictment, that Moussaoui ‘‘paid $6,800 in cash’’ to the Minneapolis 

flight school, without adequate explanation for the source of this 

funding, would have been a highly probative fact bearing on his 

connections to foreign groups. Yet, it does not appear that this was 

a fact that the FBI Headquarters agents considered in analyzing 

the totality of the circumstances. The probable source of that cash 

should have been a factor that was considered in analyzing the totality of the circumstances. So too would the information in the 

Phoenix memorandum have been helpful. It also was not considered, as discussed further below. In our view, the FBI applied too 

cramped an interpretation of probable cause and ‘‘agent of a foreign 

power’’ in making the determination of whether Moussauoi was an 

agent of a foreign power. FBI Headquarters personnel in charge of 

reviewing this application focused too much on establishing a 

nexus between Moussaoui and a ‘‘recognized’’ group, which is not 

legally required. 26 Without going into the actual evidence in the 

Moussaoui case, there appears to have been sufficient evidence in 

the possession of the FBI which satisfied the FISA requirements 

for the Moussaoui application. Given this conclusion, our primary 

task is not to assess blame on particular agents, the overwhelming 

majority of whom are to be commended for devoting their lives to 

protecting the public, but to discuss the systemic problems at the 

FBI that contributed to their inability to succeed in that endeavor. 

b. The Probable Cause Standard 

i. Supreme Court’s Definition of ‘‘Probable Cause’’

During the course of our investigation, the evidence we have 

evaluated thus far indicates that both FBI agents and FBI attorneys do not have a clear understanding of the legal standard for 

probable cause, as defined by the Supreme Court in the case of Illinois v. Gates, 462 U.S. 213 (1983). This is such a basic legal principle that, again, it is impossible to justify the FBI’s lack of complete and proper training on it. In Gates, then-Associate Justice 

Rehnquist wrote for the Court:

As early as Locke v. United States, 7 Cranch. 339, 348, 

3 L.Ed. 364 (1813), Chief Justice Marshall observed, in a 

closely related context, that ‘‘the term ‘probable cause,’ according to its usual acceptation, means less than evidence 

which would justify condemnation * * * It imports a seiVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00035 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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27 462 U.S. at 236 (citations omitted; emphasis added). 28 462 U.S. at 238 (footnote and citations omitted) (emphasis added). The relevance of Illinois v. Gates to defining probable cause is implicit in the Senate’s report when FISA was first enacted (albeit, when first enacted it covered only electronic surveillance): ‘‘In determining whether probable cause exists under this section, the court must consider the same requisite elements 

which govern such determinations in the criminal context.’’ S. Rep. 95–604, p. 47. ‘‘The FISA 

statute does not define ‘probable cause,’ although it is clear from the legislative history that 

Congress intended for this term to have a meaning analogous to that typically used in criminal 

contexts.’’ Final Report of the Attorney General’s Review Team on the Handling of the Los Alamos National Laboratory Investigation (May 2000) (‘‘The Bellows Report’’), p. 494.

zure made under circumstances which warrant suspicion.’’ More recently, we said that ‘‘the quanta * * * of proof’’ appropriate in ordinary judicial proceedings are inapplicable 

to the decision to issue a warrant. Finely-tuned standards 

such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal basis trials, have no 

place in the magistrate’s decision. While an effort to fix 

some general, numerically precise degree of certainty corresponding to ‘‘probable cause’’ may not be helpful, it is 

clear that ‘‘only the probability, and not a prima facie 

showing, of criminal activity is the standard of probable 

cause.’’ 27

The Court further stated:

For all these reasons, we conclude that it is wiser to 

abandon the ‘‘two-pronged test’’ established by our decisions in Aguilar and Spinelli. In its place we reaffirm the 

totality of the circumstances analysis that traditionally has 

informed probable cause determinations. The task of the 

issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set 

forth in the affidavit before him, including the ‘‘veracity’’ and ‘‘basis of knowledge’’ of persons supplying hearsay information, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place. And 

the duty of a reviewing court is simply to ensure that the 

magistrate had a ‘‘substantial basis for * * * conclud[ing]’’ that probable cause existed. We are convinced that this 

flexible, easily applied standard will better achieve the accommodation of public and private interests that the 

Fourth Amendment requires than does the approach that 

has developed from Aguilar and Spinelli. 28

Accordingly, it is clear that the Court rejected ‘‘preponderance of 

the evidence’’ as the standard for probable cause and established 

a standard of ‘‘probability’’ based on the ‘‘totality of the circumstances.’’

ii. The FBI’s Unnecessarily High Standard for Probable 

Cause 

Unfortunately, our review has revealed that many agents and 

lawyers at the FBI did not properly understand the definition of 

probable cause and that they also possessed inconsistent understandings of that term. In the portion of her letter to Director 

Mueller discussing the quantum of evidence needed to reach the 

standard of probable cause, SA Rowley wrote that ‘‘although I 

thought probable cause existed (‘probable cause’ meaning that the 

37

29 Rowley Letter, pp. 4–5. 30 United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (citations omitted). 31 Judiciary Committee ‘‘Oversight Hearing on Counterterrorism,’’ Transcript, June 6, 2002, 

pp. 78–79, 87 (hereinafter, Tr. 6/6/02). Sen. Specter’s letter is at Exhibit B. 32These documents are attached as Exhibits C and D. 33Tr., 6/6/02, pp. 224. 34Tr., 6/6/02, pp. 226–27. 35Tr., 6/6/02, pp 226–27. 

proposition has to be more likely than not, or if quantified, a 51 

percent likelihood), I thought our United States Attorney’s Office, 

(for a lot of reasons including just to play it safe), in regularly requiring much more than probable cause before approving affidavits, 

(maybe, if quantified, 75 percent–80 percent probability and sometimes even higher), and depending upon the actual AUSA who 

would be assigned, might turn us down.’’ 29 The Gates case and its 

progeny do not require an exacting standard of proof. Probable case 

does not mean more likely than not, but only a probability or substantial chance of the prohibited conduct taking place. Moreover, 

‘‘[t]he fact that an innocent explanation may be consistent with the 

facts alleged * * * does not negate probable cause.’’ 30

On June 6, 2002, the Judiciary Committee held an open hearing 

on the FBI’s conduct of counterterrorism investigations. The Committee heard from Director Mueller and DOJ Inspector General 

Glenn Fine on the first panel and from SA Rowley on the second 

panel. The issue of the probable cause standard was specifically 

raised with Director Mueller, citing the case of Illinois v. Gates, 

and Director Mueller was asked to comment in writing on the proper standard for establishing probable cause.31 The FBI responded 

in an undated letter to Senator Specter and with the subsequent 

transmission of an electronic communication (E.C.) dated September 16, 2002.32 In the E.C., the FBI’s General Counsel reviewed 

the case law defining ‘‘probable cause,’’ in order to clarify the definition of probable cause for FBI personnel handling both criminal 

investigations and FISA applications. 

At the June 6th hearing, SA Rowley reviewed her discussion of 

the probable cause standard in her letter. During that testimony 

three issues arose. First, by focusing on the prosecution of a potential case, versus investigating a case, law enforcement personnel, 

both investigators and prosecutors, may impose on themselves a 

higher standard than necessary to secure a warrant. 33 This prosecution focus is one of the largest hurdles that the FBI is facing 

as it tries to change its focus from crime fighting to the prevention 

of terrorist attacks. It is symptomatic of a challenge facing the FBI 

and DOJ in nearly every aspect of their new mission in preventing 

terrorism. Secondly, prosecutors, in gauging what amount of evidence reaches the probable cause standard, may calibrate their decision to meet the de facto standard imposed by the judges, who 

may be imposing a higher standard than is required by law.34 Finally, SA Rowley opined that some prosecutors and senior FBI officials may set a higher standard due to risk-averseness, which is 

caused by ‘‘careerism.’’ 35

SA Rowley’s testimony was corroborated in our other hearings. 

During a closed hearing, in response to the following questions, a 

key Headquarters SSA assigned to terrorism matters stated that 

38

36Tr., 7/9/02, pp. 35–36.

he did not know the legal standard for obtaining a warrant under 

FISA.

Senator SPECTER.* * * [SSA], what is your understanding of the legal standard for a FISA warrant? 

[SSA]. I am not an attorney, so I would turn all of those 

types of questions over to one of the attorneys that I work 

with in the National Security Law Unit. 

Question. Well, did you make the preliminary determination that there was not sufficient facts to get a FISA 

warrant issued? 

[SSA]. That is the way I saw it. 

Question. Well, assuming you would have to prove there 

was an agent and there was a foreign power, do you have 

to prove it beyond a reasonable doubt? Do you have to 

have a suspicion? Where in between? 

[SSA]. I would ask my attorney in the National Security 

Law Unit that question. 

Question. Did anybody give you any instruction as to 

what the legal standard for probable cause was? 

[SSA]. In this particular instance, no. 36

The SSA explained that he had instruction on probable cause in 

the past, but could not recall that training. It became clear to us 

that the SSA was collecting information without knowing when he 

had enough and, more importantly, making ‘‘preliminary’’ decisions 

and directing field agents to take investigating steps without knowing the applicable legal standards. While we agree that FBI agents 

and supervisory personnel should consult regularly with legal experts at the National Security Law Unit, and with the DOJ and 

U.S. Attorneys Offices, supervisory agents must also have sufficient 

facility for evaluating probable cause in order to provide support 

and guidance to the field. 

Unfortunately, our oversight revealed a similar confusion as to 

the proper standard among other FBI officials. On July 9, 2002, the 

Committee held a closed session on this issue, and heard from the 

following FBI personnel: Special Agent ‘‘G,’’ who had been a 

counterterrorism supervisor in the Minneapolis Division of the FBI 

and worked with SA Rowley; the Supervisory Special Agent (‘‘the 

SSA’’) from FBI Headquarters referred to in SA Rowley’s letter 

(and referred to in the discussion above); the SSA’s Unit Chief (‘‘the 

Unit Chief’’); a very senior attorney from the FBI’s Office of General Counsel with national security responsibilities (‘‘Attorney #1’’); 

and three attorneys assigned to the FBI’s Office of General Counsel’s National Security Law Unit (‘‘Attorney #2,’’ ‘‘Attorney #3,’’ and 

‘‘Attorney #4’’). The purpose of the session was to determine how 

the Moussaoui FISA application had been processed by FBI Headquarters personnel. None of the personnel present, including the 

attorneys, appeared to be familiar with the standard for probable 

cause articulated in Illinois v. Gates, and none had reviewed the 

case prior to the hearing, despite its importance having been highlighted at the June 6th hearing with the FBI Director. To wit:

39

37Gates, 462 U.S. at 36 (citations omitted). 38Tr., 7/9/02, pp. 37–38, 53. 39Tr., 7/9/02, pp. 39–40.

Senator SPECTER. * * * [Attorney #1] what is the legal 

standard for probable cause for a warrant? 

[Attorney #1]. A reasonable belief that the facts you are 

trying to prove are accurate. 

Question. Reason to believe? 

[Attorney #1]. Reasonable belief. 

Question. Reasonable belief? 

[Attorney #1]. More probable than not. 

Question. More probable than not? 

[Attorney #1]. Yes, sir. Not a preponderance of the evidence. 

Question. Are you familiar with ‘‘Gates v. Illinois’’? 

[Attorney #1]. No, sir.

However, ‘‘more probable than not’’ is not the standard; rather, 

‘‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’’ 37

Similarly, Attorneys #2, #3, and #4 were also not familiar with 

Gates.38 Under further questioning, Attorney #1 conceded that the 

FBI, at that time, did not have written procedures concerning the 

definition of ‘‘probable cause’’ in FISA cases: ‘‘On the FISA side of 

the house I don’t think we have any written guidelines on that. 

***’’ 39 Additionally, Attorney #1 stated that ‘‘[w]e need to have 

some kinds of facts that an agent can swear to a reasonable belief 

that they are true,’’ to establish that a person is an agent of a foreign power. Giving a precise definition of probable cause is not an 

easy task, as whether probable cause exists rests on factual and 

practical considerations in a particular context. Yet, even with the 

inherent difficulty in this standard we are concerned that senior 

FBI officials offered definitions that imposed heightened proof requirements. The issue of what is required for ‘‘probable cause’’ is 

especially troubling because it is not the first time that the issue 

had arisen specifically in the FISA context. Indeed, the Judiciary 

Committee confronted the issue of ‘‘probable cause’’ in the FISA 

context in 1999, when the Committee initiated oversight hearings 

of the espionage investigation of Dr. Wen Ho Lee. Among the many 

issues examined was whether there was probable cause to obtain 

FISA surveillance of Dr. Lee. In that case, there was a disagreement as to whether probable cause existed between the FBI and 

the DOJ, within the DOJ, and among ourselves. 

In 1999, Attorney General Janet Reno commissioned an internal 

DOJ review of the Wen Ho Lee investigation. The Attorney General’s Review Team on the Handling of the Los Alamos National 

Laboratory Investigation was headed by Assistant United States 

Attorney Randy I. Bellows, a Senior Litigation Counsel in the Office of the United States Attorney for the Eastern District of Virginia. Mr. Bellows submitted his exhaustive report on May 12, 

2000 (the ‘‘Bellows Report’’), and made numerous findings of fact 

and recommendations. With respect to the issue of probable cause, 

Mr. Bellows concluded that: 

40

40 Bellows Report, p. 482. 41 Bellows Report, p. 493. The Bellows team was not the only group to reach this conclusion. 

The National Commission on Terrorism, headed by former Ambassador L. Paul Bremer, III, 

found the following:

The Commission heard testimony that, under ordinary circumstances, the FISA process can be slow and burdensome, requiring information beyond the minimum required 

by the statute. For example, to obtain a FISA order, the statute requires only probable 

cause to believe that someone who is not a citizen or legal permanent resident of the 

United States is a member of an international terrorist organization. In practice, however, OIPR requires evidence of wrongdoing or specific knowledge of the group’s terrorist intentions in addition to the person’s membership in the organization before forwarding the application to the FISA Court. Also, OIPR does not generally consider the 

past activities of the surveillance target relevant in determining whether the FISA 

probable cause test is met. 

During the period leading up to the millennium, the FISA application process was 

streamlined. Without lowering the FISA standards, applications were submitted to the 

FISA Court by DOJ promptly and with enough information to establish probable cause. 

Report of the National Commission on Terrorism at p. 11.

The Commission recommended that:

—The Attorney General should direct that the Office of Intelligence Policy and Review not require information in excess of that actually mandated by the probable cause 

standard in the Foreign Intelligence Surveillance Act statute. 

—To ensure timely review of the Foreign Intelligence Surveillance Act applications, 

the Attorney General should substantially expand the Office of Intelligence Policy and 

Review staff and direct it to cooperate with the Federal Bureau of Investigation. 42 Bellows Report, p. 484 (emphasis in original). 43Tr., 6/6/02, p. 91. 

The final draft FISA application (Draft #3), on its face, 

established probable cause to believe that Wen Ho Lee was 

an agent of a foreign power, that is to say, a United States 

person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities 

involved or might involve violations of the criminal laws of 

the United States. * * * Given what the FBI and OIPR 

knew at the time, it should have resulted in the submission of a FISA application, and the issuance of a FISA 

order.40

The Bellows team concluded that OIPR has been too conservative 

with the Wen Ho Lee FISA application, a conservatism that may 

continue to affect the FBI’s and DOJ’s handling of FISA applications. The team found that with respect to OIPR’s near-‘‘perfect 

record’’ before the FISA Court (only one FISA rejection), ‘‘[w]hile 

there is something almost unseemly in the use of such a remarkable track record as proof of error, rather than proof of excellence, 

it is nevertheless true that this record suggests the use of ‘PC+,’

an insistence on a bit more than the law requires.’’ 41

The Bellows team made another finding of particular pertinence 

to the instant issue. It found that ‘‘[t]he Attorney General should 

have been apprised of any rejection of a FISA request. * * *’’ 42 In 

effect, FBI Headquarters rejected the Minneapolis Division’s request for a FISA application, a decision that was not reported to 

then Acting Director Thomas Pickard. Director Mueller has adopted a new policy, not formally recorded in writing, that he be informed of the denial within the FBI of any request for a FISA application.43 However, in an informal briefing the weekend after this 

new policy was publicly announced, the FBI lawyer whom it most 

directly affected claimed to know nothing of the new ‘‘policy’’ beyond what he had read in the newspaper. From an oversight perspective, it is striking that the FBI and DOJ were effectively on noVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00040 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
41

tice regarding precisely this issue: that the probable cause test 

being applied in FISA investigations was more stringent than legally required. We appreciate the carefulness and diligence with 

which the professionals at OIPR and the FBI exercise their duties 

in processing FISA applications, which normally remain secret and 

immune from the adversarial scrutiny to which criminal warrants 

are subject. Yet, this persistent problem has two serious repercussions. First, the FBI and DOJ appear to be failing to take decisive 

action to provide in-depth training to agents and lawyers on an 

issue of the utmost national importance. We simply cannot continue to deny or ignore such training flaws only to see them repeated in the future. 

Second, when the DOJ and FBI do not apply or use the FISA as 

fully or comprehensively as the law allows, pressure is brought on 

the Congress to change the statute in ways that may not be at all 

necessary. From a civil liberties perspective, the high-profile investigations and cases in which the FISA process appears to have broken down is too easily blamed on the state of the law rather than 

on inadequacies in the training of those responsible for implementing the law. The reaction on the part of the DOJ and FBI has 

been to call upon the Congress to relax FISA standards rather than 

engage in the more time-consuming remedial task of reforming the 

management and process to make it work better. Many times such 

‘‘quick legislative fixes’’ are attractive on the surface, but only operate as an excuse to avoid correcting more fundamental problems. 

4. The Working Relationship Between FBI Headquarters and 

Field Offices 

Our oversight revealed that on more than one occasion FBI 

Headquarters was not sufficiently supportive of agents in the field 

who were exercising their initiative in an attempt to carry out the 

FBI’s mission. While at least some of this is due to resource and 

staffing shortages, which the current Director is taking action to 

address, there are broader issues involved as well. Included in 

these is a deep-rooted culture at the FBI that makes an assignment to Headquarters unattractive to aggressive field agents and 

results in an attitude among many who do work at Headquarters 

that is not supportive of the field. 

In addition to these cultural problems at the FBI, we conclude 

that there are also structural and management problems that contribute to the FBI’s shortcomings as exemplified in the implementation of the FISA. Personnel are transferred in and out of key 

Headquarters jobs too quickly, so that they do not possess the expertise necessary to carry out their vital functions. In addition, the 

multiple layers of supervision at Headquarters have created a bureaucratic FBI that either will not or cannot respond quickly 

enough to time-sensitive initiatives from the field. We appreciate 

that the FBI has taken steps to cut through some of this bureaucracy by requiring OIPR attorneys to have direct contact with field 

agents working on particular cases. 

In addition to hampering the implementation of FISA, there are 

problems that the Judiciary Committee has witnessed replayed in 

other contexts within the FBI. These root causes must be adVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00041 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
42

dressed head on, so that Headquarters personnel at the FBI view 

their jobs as supporting talented and aggressive field agents. 

The FBI has a key role in the FISA process. Under the system 

designed by the FBI, a field agent and his field supervisors must 

negotiate a series of bureaucratic levels in order to even ask for a 

FISA warrant. The initial consideration of a FISA application and 

evaluation of whether statutory requirements are met is made by 

Supervisory Special Agents who staff the numerous Headquarters 

investigative units. These positions are critical and sensitive by 

their very nature. No application can move forward to the attorneys in the FBI’s National Security Law Unit (NSLU) for further 

consideration unless the unit SSA says so. In addition, no matter 

may be forwarded to the DOJ lawyers at the OIPR without the approval of the NSLU. These multiple layers of review are necessary 

and prudent but take time. 

The purpose of having SSAs in the various counterterrorism 

units is so that those personnel may bring their experience and 

skill to bear to bolster and enhance the substance of applications 

sent by field offices. A responsible SSA will provide strategic guidance to the requesting field division and coordinate the investigative activities and efforts between FBI Headquarters and that office, in addition to the other field divisions and outside agencies involved in the investigation. This process did not work well in the 

Moussaoui case.

Under the FBI’s system, an effective SSA should thoroughly brief 

the NSLU and solicit its determination on the adequacy of any application within a reasonable time after receipt. In ‘‘close call’’ investigations, we would expect the NSLU attorneys to seek to review all written information forwarded by the field office rather 

than rely on brief oral briefings. In the case of the Moussaoui application forwarded from Minneapolis, the RFU SSA merely provided 

brief, oral briefings to NSLU attorneys and did not once provide 

that office with a copy of the extensive written application for their 

review. An SSA should also facilitate communication between the 

OIPR, the NSLU, and those in the field doing the investigation and 

constructing the application. That also did not occur in this case. 

By its very nature, having so many players involved in the process allows internal FBI finger-pointing with little or no accountability for mistakes. the NSLU can claim, as it does here, to have 

acquiesced to the factual judgment of the SSAs in the investigative 

unit. The SSAs, in turn, claim that they have received no legal 

training or guidance and rely on the lawyers at the NSLU to make 

what they term as legal decisions. The judgment of the agents in 

the field, who are closest to the facts of the case, is almost completely disregarded. 

Stuck in this confusing, bureaucratic maze, the seemingly simple 

and routine business practices within key Headquarters units were 

flawed. As we note above, even routine renewals on already existing FISA warrants were delayed or not obtained due to the lengthy 

delays in processing FISA applications. 

5. The Mishandling of the Phoenix Electronic Communication 

The handling of the Phoenix EC represents another prime example of the problems with the FBI’s FISA system as well as its 

43

44The Joint Inquiry similarly concluded that ‘‘the FBI headquarters personnel did not take 

the action requested by the Phoenix agent prior to September 11, 2001. The communication generated little or no interest at either FBI Headquarters or the FBI’s New York field office.’’ (Final 

Report, Findings, p. 3). 45 An Investigation of the Belated Production of Documents in the Oklahoma City Bombing 

Case, Office of the Inspector General, March 19, 2002 (Oklahoma City Report). 46Oklahoma City Report, p.2. 

faulty use of information technology. The EC contained information 

that was material to the decision whether or not to seek a FISA 

warrant in the Moussaoui case, but it was never considered by the 

proper people.44 Even though the RFU Unit Chief himself was listed as a direct addressee on the Phoenix EC (in addition to others 

within the RFU and other counterterrorism Units at FBI Headquarters), he claims that he never even knew of the existence of 

such an EC until the FBI’s Office of Professional Responsibility 

(OPR) contacted him months after the 9/11 attacks. Even after this 

revelation, the Unit Chief never made any attempt to notify the 

Phoenix Division (or any other field Division) that he had not read 

the EC addressed to him. He issued no clarifying instructions from 

his Unit to the field, which very naturally must believe to this day 

that this Unit Chief is actually reading and assessing the reports 

that are submitted to his attention and for his consideration. The 

Unit Chief in question here has claimed to be ‘‘at a loss’’ as to why 

he did not receive a copy of the Phoenix EC at the time it was assigned, as was the practice in the Unit at that time. 

Apparently, it was routine in the Unit for analytic support personnel to assess and close leads assigned to them without any supervisory agent personnel reviewing their activities. In the RFU, 

the two individuals in the support capacity entered into service at 

the FBI in 1996 and 1998. The Phoenix memo was assigned to one 

of these analysts as a ‘‘lead’’ by the Unit’s Investigative Assistant 

(IA) on or about July 30th, 2001. The IA would then accordingly 

give the Unit Chief a copy of each EC assigned to personnel in the 

Unit for investigation. The RFU Unit Chief claims to have never 

seen this one. In short, the crucial information being collected by 

FBI agents in the field was disappearing into a black hole at Headquarters. To the extent the information was reviewed, it was not 

reviewed by the appropriate people. 

More disturbing, this is a recurrent problem at the FBI. The handling of the Minneapolis LHM and the Phoenix memo, neither of 

which were reviewed by the correct people in the FBI, are not the 

first times that the FBI has experienced such a problem in a major 

case. The delayed production of documents in the Oklahoma City 

bombing trial, for example, resulted in significant embarrassment 

for the FBI in a case of national importance. The Judiciary Committee held a hearing during which the DOJ’s own Inspector General testified that the inability of the FBI to access its own information base did and will have serious negative consequences.45 Although the FBI is undertaking to update its information technology 

to assist in addressing this problem, the Oklahoma City case demonstrates that the issue is broader than antiquated computer systems. As the report concluded, ‘‘human error, not the inadequate 

computer system, was the chief cause of the failure * * *’’ 46 The 

report concluded that problems of training and FBI culture were 

the primary causes of the embarrassing mishaps in that case. Once 

44

again, the FBI’s and DOJ’s failures to address such broad based 

problems seem to have caused their recurrence in another context. 

6. The FBI’s Poor Information Technology Capabilities 

On June 6, 2002, Director Mueller and SA Rowley testified before 

the Senate Judiciary Committee on the search capabilities of the 

FBI’s Automated Case Support (ACS) system. ACS is the FBI’s 

centralized case management system, and serves as the central 

electronic repository for the FBI’s official investigative textual documents. Director Mueller, who was presumably briefed by senior 

FBI officials regarding the abilities of the FBI’s computers, testified 

that, although Phoenix memorandum had been uploaded to the 

ACS, it was not used by agents who were investigating the 

Moussaoui case in Minnesota or at Headquarters. According to Director Mueller, the Phoenix memorandum was not accessible to the 

Minneapolis field office or any other offices around the country; it 

was only accessible to the places where it had been sent; Headquarters and perhaps two other offices. Director Mueller also testified that no one in the FBI had searched the ACS for relevant 

terms such as ‘‘aviation schools’’ or ‘‘pilot training.’’ According to 

Director Mueller, he hoped to have in the future the technology in 

the computer system to do that type of search (e.g., to pull out any 

electronic communication relating to aviation), as it was very cumbersome to do that type of search as of June 6, 2002. SA Rowley 

testified that FBI personnel could only perform one-word searches 

in the ACS system, which results in too many results to review. 

Within two weeks of the hearing, on June 14, 2002, both Director 

Mueller (through John E. Collingwood, AD Office of Public and 

Congressional Affairs) and SA Rowley submitted to the Committee 

written corrections of their June 6, 2002, testimony. The FBI corrected the record by stating that ACS was implemented in all FBI 

field offices, resident agencies, legal attache offices, and Headquarters on October 16, 1995. In addition, it was, in fact, possible 

to search for multiple terms in the ACS system, using Boolean connectors (e.g., hijacker or terrorist and flight adj school), and to refine searches with other fields (e.g., document type). Rowley confirmed the multiple search-term capabilities of ACS and added that 

the specifics of ACS’s search capabilities are not widely known 

within the FBI. 

We commend Director Mueller and SA Rowley for promptly correcting their testimony as they became aware of the incorrect description of the FBI’s ACS system during the hearing. Nevertheless, their corrections and statements regarding FBI personnel’s 

lack of knowledge of the ACS system highlights a longstanding 

problem within the Bureau. An OIG report, issued in July 1999, 

states that FBI personnel were not well-versed in the ACS system 

or other FBI databases. An OIG report of March 2002, which analyzed the causes for the belated production of many documents in 

the Oklahoma City bombing case, also concluded that the inefficient and complex ACS system was a contributing factor in the 

FBI’s failure to provide hundreds of investigative documents to the 

defendants in the Oklahoma City Bombing Case. In short, this 

Committee’s oversight has confirmed, yet again, that not only are 

45

the FBI’s computer systems inadequate but that the FBI does not 

adequately train its own personnel in how to use their technology. 

7. The ‘‘Revolving Door’’ at FBI Headquarters 

Compounding information technology problems at the FBI are 

both the inexperience and attitude of ‘‘careerist’’ senior FBI agents 

who rapidly move through sensitive supervisory positions at FBI 

Headquarters. This ‘‘ticket punching’’ is routinely allowed to take 

place with the acquiescence of senior FBI management at the expense of maintaining critical institutional knowledge in key investigative and analytical units. FBI agents occupying key Headquarters positions have complained to members of the Senate Judiciary Committee that relocating to Washington, DC, is akin to a 

‘‘hardship’’ transfer in the minds of many field agents. More often 

than not, however, the move is a career enhancement, as the agent 

is almost always promoted to a higher pay grade during or upon 

the completion of the assignment. The tour at Headquarters is usually relatively short in duration and the agent is allowed to leave 

and return to the field. 

To his credit, Director Mueller tasked the Executive Board of the 

Special Agents Advisory Committee (SAAC) to report to him on disincentives for Special Agents seeking administrative advancement. 

They reported on July 1, 2002, with the following results of an earlier survey:

Less than 5% of the Agents surveyed indicated an 

interest in promotion if relocation to FBIHQ was required. Of 35 field supervisors queried, 31 said they 

would ‘‘step down’’ rather than accept an assignment in Washington, D.C. All groups of Agents (those 

with and without FBIHQ experience) viewed as assignment at FBIHQ as very negative. Only 6% of 

those who had previously been assigned there believed that the experience was positive—the work 

was clerical, void of supervisory responsibility critical to future field or other assignments. Additionally, the FBIHQ supervisors were generally powerless to make decisions while working in an environment which was full of negativity, intimidation, fear 

and anxiousness to leave. (bold emphasis in original).

The SAAC report also contained serious criticism of FBI management, stating:

Agents across the board expressed reluctance to 

become involved in a management system which 

they believe to [be] hypocritical, lacking ethics, and 

one in which we lead by what we say and not by example. Most subordinates believe and most managers agreed that the FBI is too often concerned 

with appearance over substance. Agents believed 

that management decisions are often based on promoting one’s self interest versus the best interests of 

the FBI. (bold emphasis in original).

46

There is a dire need for the FBI to reconsider and reform a personnel system and a management structure that do not create the 

proper incentives for its most capable and talented agents to occupy its most important posts. The SAAC recommended a number 

of steps to reduce or eliminate ‘‘disincentives for attaining leadership within the Bureau.’’ Congress must also step up to the plate 

and assess the location pay differential for Headquarters transfers 

compared to other transfers and other financial rewards for administrative advancement to ensure that those agents with relevant 

field experience and accomplishment are in critical Headquarters 

positions. 

Indeed, in the time period both before and after the Moussaoui 

application was processed at Headquarters (and continuing for 

months after the 9/11 attacks), most of the agents in the pertinent 

Headquarters terrorism unit had less than two years of experience 

working on such cases. In the spring and summer of 2001, when 

Administration officials have publicly acknowledged increased 

‘‘chatter’’ internationally about potential terrorist attacks, the Radical Fundamentalist Unit at FBI Headquarters experienced the 

routinely high rate of turnover in agent personnel as others units 

regularly did. Not only was the Unit Chief replaced, but also one 

or more of the four SSAs who reported to the Unit Chief was a recent transfer into the Unit. These key personnel were to have immediate and direct control over the fate of the ‘‘Phoenix memo’’ and 

the Minneapolis Division’s submission of a FISA application for the 

personal belongings of Moussaoui. While these supervisory agents 

certainly had distinguished and even outstanding professional experience within the FBI before being assigned to Headquarters, 

their short tours in the specialized counterterrorism units raises 

questions about the depth and scope of their training and experience to handle these requests properly and, more importantly, 

about the FBI’s decision to allow such a key unit to be staffed in 

such a manner.

Rather than staffing counterterrorism units with Supervisory 

Special Agents on a revolving door basis, these positions should be 

filled with a cadre of senior agents who can provide continuity in 

investigations and guidance to the field. 

A related deficiency in FBI management practices was that those 

SSAs making the decisions on whether any FISA application 

moved out of an operational unit were not given adequate training, 

guidance, or instruction on the practical application of key elements of the FISA statute. As we stated earlier, it seems incomprehensible that those very individuals responsible for taking a FISA 

application past the first step were allowed to apply their own individual interpretations of critical elements of the law relating to 

what constitutes a ‘‘foreign power,’’ ‘‘acting as a agent of a foreign 

power,’’ ‘‘probable cause,’’ and the meaning of ‘‘totality of the circumstances,’’ before presenting an application to the attorneys in 

the NSLU. We learned at the Committee’s hearing this past September 10th, a full year after the terrorist attacks, that the FBI 

drafted administrative guidelines that will provide for Unit Chiefs 

and SSAs at Headquarters a uniform interpretation of how—and 

just as importantly—when to apply probable cause or other standards in FISA warrant applications. 

47

47 50 U.S.C. 1807. 48 50 U.S.C. Sections 1808, 1826, 1846, 1863. 

All of these problems demonstrate that there is a dire need for 

a thorough review of procedural and substantive practices regarding FISA at the FBI and the DOJ. The Senate Judiciary Committee 

needs to be even more vigilant in its oversight responsibilities regarding the entire FISA process and the FISA Court itself. The 

FISA process is not fatally flawed, but rather its administration 

and coordination needs shift review and improvement if it is to continue to be an effective tool in America’s war on terrorism. 

IV. The Importance of Enhanced Congressional Oversight 

An undeniable and distinguishing feature of the flawed FISA implementation system that has developed at the DOJ and FBI over 

the last 23 years in its secrecy. Both at the legal and operational 

level, the most generalized aspects of the DOJ’s FISA activities 

have not only been kept secret from the general public but from the 

Congress as well. As we stated above, much of this secrecy has 

been due to a lack of diligence on the part of Congress exercising 

its oversight responsibility. Equally disturbing, however, is the difficulty that a properly constituted Senate Committee, including a 

bipartisan group of senior senators, had in conducting effective 

oversight of the FISA process when we did attempt to perform our 

constitutional duties. 

The Judiciary Committee’s ability to conduct its inquiry was seriously hampered by the initial failure of the DOJ and the Administrative Office of the United States Courts to provide to the Committee an unclassified opinion of the FISA Court relevant to these 

matters. As noted above, we only received this opinion on August 

22, 2002, in the middle of the August recess. 

Under current law there is no requirement that FISA Court opinions be made available to Congressional committees or the public. 

The only statutory FISA reporting requirement is for an unclassified annual report of the Attorney General to the Administrative 

Office of the United States Court and to Congress setting forth 

with respect to the preceding calendar year (a) the total number of 

applications made for orders and extensions of orders approving 

electronic surveillance under Title I, and (b) the total number of 

such orders and extensions either granted, modified, or denied.47

These reports do not disclose or identify unclassified FISA Court 

opinions or disclose the number of individuals or entities targeted 

for surveillance, nor do they cover FISA Court orders for physical 

searches, pen registers, or records access. 

Current law also requires various reports from the Attorney General to the Intelligence and Judiciary Committees that are not 

made public.48 These reports are used for Congressional oversight 

purposes, but do not include FISA Court opinions. When the Act 

was passed in 1978, it required the Intelligence Committees for the 

first five years after enactment to report respectively to the House 

of Representatives and the Senate concerning the implementation 

of the Act and whether the Act should be amended, repealed, or 

permitted to continue in effect without amendment. Those public 

reports were issued in 1979–1984 and discussed one FISA Court 

48

opinion issued in 1981, which related to the Court’s authority to 

issue search warrants without express statutory jurisdiction. 

The USA PATRIOT Act of 2001 made substantial amendments 

to FISA, and those changes are subject to a sunset clause under 

which they shall generally cease to have effect on December 31, 

2005. That Act did not provide for any additional reporting to the 

Congress or the public regarding implementation of these amendments or FISA Court opinions interpreting them. 

Oversight of the entire FISA process is hampered not just because the Committee was initially denied access to a single unclassified opinion but because the Congress and the public get no access to any work of the FISA Court, even work that is unclassified. 

This secrecy is unnecessary, and allows problems in applying the 

law to fester. There needs to be a healthy dialogue on unclassified 

FISA issues within Congress and the Executive branch and among 

informed professionals and interested groups. Even classified legal 

memoranda submitted by the DOJ to, and classified opinions by, 

the FISA Court can reasonably be redacted to allow some scrutiny 

of the issues that are being considered. This highly important body 

of FISA law is being developed in secret, and, because they are ex 

parte proceedings, without the benefit of opposing sides fleshing 

out the arguments as in other judicial contexts, and without even 

the scrutiny of the public or the Congress. Resolution of this problem requires considering legislation that would mandate that the 

Attorney General submit annual public reports on the number of 

targets of FISA surveillance, search, and investigative measures 

who are United States persons, the number of criminal prosecutions where FISA information is used and approved for use, and 

the unclassified opinions and legal reasoning adopted by the FISA 

Court and submitted by the DOJ. 

As the recent litigation before the FISA Court of Review demonstrated, oversight also bears directly on the protection of important civil liberties. Due process means that the justice system has 

to be fair and accountable when the system breaks down. 

Many things are different now since the tragic events of last September, but one thing that has not changed is the United States 

Constitution. Congress must work to guarantee the civil liberties of 

our people while at the same time meet our obligations to America’s national security. Excessive secrecy and unilateral decision 

making by a single branch of government is not the proper method 

of striking that all important balance. We hope that, joining together, the Congress and the Executive Branch can work in a bipartisan manner to best serve the American people on these important issues. The stakes are too high for any other approach.

PATRICK LEAHY. 

ARLEN SPECTER. 

CHUCK GRASSLEY.

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(73)

ADDITIONAL VIEWS OF SENATOR RUSSELL FEINGOLD 

As the title states, the purpose of S. 113 is to amend ‘‘the Foreign 

Intelligence Surveillance Act of 1978 to allow surveillance of nonUnited States persons who engage in or prepare for international 

terrorism without affiliation with a foreign government or international terrorist group.’’ In other words, as the Majority describes 

it, the intent of S. 113 is to permit FISA warrants to be obtained 

against the so-called ‘‘lone wolf’’ foreign terrorist. The lone-wolf terrorist is envisioned as an individual who has no identifiable ties to 

any foreign power, including any terrorist group. 

I voted for this bill in committee because I want to engage in further discussions concerning proposed amendments to the bill and 

help improve it before it is taken up on the floor. I have doubts, 

however, about the constitutionality and the wisdom of the bill as 

reported by the Committee. 

The approach taken in S. 113 would eliminate the current requirement in FISA that the individual who is the target of a warrant must be an agent of a foreign power. This means that S. 113 

may very well result in FISA serving as a substitute for some of 

our most important criminal laws. I am concerned that S. 113 goes 

further than necessary to address the concern over the ability of 

law enforcement to identify, investigate and apprehend the true 

lone-wolf terrorist. 

Like all Senators, I am extremely committed to taking every step 

necessary to protect our nation against terrorist attacks. But, I am 

troubled with the approach S. 113 takes to expand the use of Foreign Intelligence Surveillance Act. FISA represents an important 

exception to traditional constitutional restraints on criminal investigations, allowing the government to gather foreign intelligence information without having probable cause that a crime has been or 

is going to be committed. The courts have permitted the government to proceed with surveillance in this country under FISA’s 

lesser standard of suspicion because the power is limited to investigations of foreign powers and their agents. S. 113 writes out of 

the statute a key requirement necessary to the lawfulness of intrusive surveillance powers that would otherwise be unconstitutional. 

See In re Sealed Case No. 02–001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while FISA requires 

no showing of probable cause of criminal activity, it is constitutional in part because it provides ‘‘another safeguard * * * that is, 

the requirement that there be probable cause to believe the target 

is acting ‘for or on behalf of a foreign power.’ ’’) 

Even if S. 113 survives constitutional challenge, it would mean 

that non-U.S. persons could have electronic surveillance authorized 

against them using the lesser standards of FISA even though there 

is no conceivable foreign intelligence aspect to their cases. Judges 

would not even be able to use their discretion in reviewing a FISA 

74

warrant application to determine if a non-U.S. person is connected 

to any foreign power or terrorist group. This elimination of a foreign intelligence element of the warrant is contrary to the very 

purpose of FISA and the justification for its reduced standards. 

We should all recall the last time that Congress attempted to fix 

the rules for the use of FISA warrants in the USA PATRIOT Act. 

At that time, the expectation of most Senators was that the 

changes they were making to FISA would be used in a limited and 

reasonable manner. One change Congress authorized made it easier for FISA to be used in cases where the purpose of the investigation was primarily criminal prosecution rather than foreign intelligence gathering. Under USA PATRIOT Act, foreign intelligence 

gathering need only be a ‘‘significant’’ purpose of obtaining the warrant rather than the ‘‘primary’’ purpose. 

The decision of the Attorney General to use FISA warrants more 

aggressively in criminal cases after the USA PATRIOT Act was 

passed demonstrates the impact that changing a single word in the 

statute can have. Not surprisingly, there has been a significant increase in the use of FISA warrants in criminal cases since enactment of the USA PATRIOT Act. We could very well be looking at 

a similar result if S. 113 passes in its current form. Eliminating 

the agent of a foreign power requirement could lead to an even 

more dramatic increase in the use of FISA warrants in situations 

that do not justify such extraordinary government power. 

We are told that one of the inspirations for this bill was the case 

of Zacharias Moussaoui, the alleged 20th hijacker. One of the FBI’s 

excuses for not seeking a warrant to search Mr. Moussaoui’s computer prior to September 11th was that because it could not identify a foreign power or group with which Moussaoui was associated, 

it could not meet the ‘‘agent of a foreign power’’ requirement to get 

a FISA warrant. In the case of Moussaoui, a warrant application 

was never even submitted to the FISA court. As Senator Specter 

has pointed out, many legal observers believe that the FBI simply 

misread the law and that it could and should have obtained a FISA 

warrant against Mr. Moussaoui if it had tried. 

It is somewhat difficult to envision a foreigner in the U.S. planning an international terrorist attack who is not an agent of a foreign power, which includes a terrorist organization. But it is certainly possible that at a time a FISA warrant is sought good evidence of that connection might not be available. I support the effort 

to make sure that a request for a warrant in such cases is not denied. On the other hand, it is also very possible that at the time 

a request for a reauthorization of the FISA warrant is made, the 

government will have determined that the suspect is truly not an 

agent of a foreign power. In those situations, FISA should not 

apply, and the government should be required to use the investigative tools available under our criminal laws. The foreign intelligence rationale for FISA’s lesser standard no longer exists. I believe that the bill should include safeguards to make sure that the 

new powers included in this bill are not abused. Without such safeguards, we risk having this bill thrown out by the courts. 

FISA must not be allowed to become the exception that swallowed the Fourth Amendment. There are ways to address the lone 

wolf terrorist that do not write the concept of ‘‘foreign intelligence’’

75

out of the Foreign Intelligence Surveillance Act. I hope that the full 

Senate will reduce the dangers that this bill poses to our constitutional freedoms.

RUSS FEINGOLD. 

(76)

X. APPENDIX A—EXCERPTS FROM JOINT INQUIRY BRIEFING

BY STAFF ON UNITED STATES GOVERNMENT

COUNTERTERRORISM ORGANIZATIONS AND ON THE EVOLUTION OF THE TERRORIST THREAT AND UNITED STATES

RESPONSE: 1986–2001, SEPTEMBER 24, 2002

The committees met, pursuant to notice, at 10:10 a.m., in Room 

216, Hart Senate Office Building, the Honorable Porter Goss, 

Chairman of the House Permanent Select Committee on Intelligence, presiding. 

Senate Select Committee on Intelligence Members Present: Senators Graham, Shelby, Levin, Rockefeller, Feinstein, Bayh, Edwards, Mikulski, Kyl, Inhofe, Hatch, Roberts, and DeWine. 

House Permanent Select Committee on Intelligence Members 

Present: Representatives Goss, Bereuter, Castle, Boehlert, Gibbons, 

Hoekstra, Burr, Chambliss, Pelosi, Harman, Roemer, Boswell, Peterson, and Cramer. 

Senate Select Committee Staff Members Present: Alfred 

Cumming, Staff Director; William Duhnke, Minority Staff Director; 

Vicki Divoll, General Counsel; Kathleen McGhee, Chief Clerk; 

James Barnett, Randy Bookout, Steve Cash, Pete Dorn, Melvin 

Dubee, Bob Filippone, Chris Ford, Lorenzo Goco, James Hensler, 

Chris Jackson, Andrew Johnson, Ken Johnson, Hyon Kim, Don 

Mitchell, Matt Pollard, Don Stone, Tawanda Sullivan, Linda Taylor, Tracye Winfrey, and Jim Wolfe. 

House Permanent Select Committee on Intelligence Staff Members Present: Timothy R. Sample, Staff Director; Chrisopher Barton, Acting Chief Counsel; Michael W. Sheehy, Minority Counsel; 

Michael Meermans, James Lewis, L. Christine Healey, Carolyn 

Bartholomew, T. Kirk McConnell, Wyndee Parker, Bob Emmett, 

and William P. McFarland. 

Joint Inquiry Staff Members Present: Rick Cinquegrana, Michael 

Davidson, Eleanor Hill, Kay Holt, Michael Jacobson, Everett Jordan, Miles Kara, Thomas Kelley, Dana Lesemann, Lewis Moon, Patricia and Ravalgi. 

Also Present: Mr. Bowman, Deputy General Counsel, FBI; Mr. 

Rolince, Special Agent in Charge, FBI Washington Field Office; and 

David Nahmias, Department of Justice.

FBI HEADQUARTERS AGENT. A foreign power with regard to a 

FISA in a terrorism case would be a terrorist organization. 

Senator LEVIN. Exactly right. You don’t need a foreign power. 

The terrorist organization is enough. Yet, this was not pursued because you were told that you had to prove that there was a foreign 

power connection. 

FBI HEADQUARTERS AGENT. No, that is not true. 

Senator LEVIN. If that is not correct, fine, I will let Senator Edward’s Q and A answer that. 

77

My question is this: Apparently there was an acknowledgment 

that there was a misinterpretation of the law. Okay. How much 

FISA requests were not made based on that misinterpretation of 

law, in addition to the one that we are talking about here? That 

is a very specific, numerical question. How many requests were not 

made based on the misinterpretation which was acknowledged or 

explored by Senator Edwards? 

Mr. BOWMAN. May I briefly answer that, if I may, Mr. Chairman? I don’t know of any other instance in which something like 

this came up. But I don’t think, Senator, that Senator Edwards’ questions got quite to what you were focused on there. The fact of 

the matter is, that the agent of a foreign power is something that 

is not defined in the statute, but is addressed in the legislative history, which we have to follow, because that is where we get an explanation of it. 

An agent of a foreign power in the legislative history describes 

a knowing member of a group or organization, and puts an onus 

on the government to prove that there is a nexus which exists between that individual and the organization which would make it 

likely that that individual would do the bidding of the foreign 

power. That is the stretch that we weren’t able to get to. 

Mr. ROLINCE. Mr. Chairman, I think that is absolutely essential, 

because there seems to be a disconnect between whether or not we 

did not get the FISA because we could not connect him to a foreign 

power. 

We did not get the FISA because the decision came out, in consultation with OGC, that we could not plead him as an agent of 

that foreign power. 

Senator LEVIN. If I could put in the record the definitions of foreign power in 50 U.S. Code Section 1801(A). And foreign power is 

defined as, including in Subsection 4, a group engaged in international terrorism, or activities in preparation therefore. 

Mr. ROLINCE. No disagreement, but we have to prove that he is 

an agent of that foreign power. 

Senator LEVIN. Of that group? 

Mr. ROLINCE. Right. That is where we were lacking. That he was 

an agent of that group. 

FBI HEADQUARTERS AGENT. If I could, this is a very significant 

issue, and one that we should probably take up a closed session. 

And it needs to be explored, because this is a problem that we are 

going to face many times now in the future. And this issue of how 

to get at these so-called lone wolves needs to be addressed.

But I wanted to ask you, Mr. Bowman, if I might, this question: 

Just quickly following up on Senator Levin’s as I understand it, 

then, the FBI’s national security lawyers essentially used the 

wrong standard of designated group, ergo Chechen, not on the list, 

ergo not designated, rather than any group. And some 3 weeks was 

taken in that endeavor. 

Then I think Senator Levin asked the question: Well, how much 

other FISA requests went through the same thing? Is the answer 

there was no other FISA—this was the only FISA request that happened to encounter that kind of false standard? 

Mr. BOWMAN. Two different parts of your question, Senator. First 

of all, no one in the national security law arena said that the 

78

Chechens were not a power that could be—that could qualify as a 

foreign power under the FISA statute. 

The issue that came to us was whether there was any foreign 

power to which you could attach Moussaoui. And we did not see 

that. 

The second part of your question was whether there are others 

who have been given an erroneous standard, whether there were 

other FISAS that did not come to us because there was an erroneous standard. I don’t know what I don’t know. 

This is the only time that I have heard that advice was actually 

given that you don’t have—you don’t have a foreign power, because 

there isn’t a recognized one. That is certainly not what we train 

them to. 

(79)

XI. APPENDIX B—LETTER FROM JUDICIARY COMMITTEE CHAIRMAN

HATCH TO SENATORS LEAHY, GRASSLEY AND SPECTER, DATED

FEBRUARY 27, 2003

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC, February 27, 2003. 

Senator PATRICK J. LEAHY, 

Ranking Minority Member, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

Senator CHARLES E. GRASSLEY, 

U.S. Senate, Washington, DC. 

Senator ARLEN SPECTER, 

U.S. Senate, Washington, DC. 

DEAR SENATORS LEAHY, GRASSLEY AND SPECTER: I have reviewed 

your Interim Report on FISA Implementation Failures which you 

released Tuesday. Examining the performance of the FBI, and specifically, the FBI’s investigative efforts prior to the September 11th 

attack is an important function of the Committee and I commend 

your interest and efforts in assisting with this matter. 

At the outset, I am deeply concerned about the manner in which 

the Interim Report was issued as a report of the Committee’s investigation at your press conference. This report does not represent 

my view as Chairman of the Judiciary Committee, nor does it represent the views of the Judiciary Committee. Rather, the Interim 

Report represents the views of you as three Senators on the Judiciary Committee. Indeed, you have a right to express your individual 

views as provided in the Interim Report, however, as described 

below, there is much in the report that I, and probably other Members, find objectionable, stale or incomplete. For these reasons, I 

object to any suggestion in the Interim Report that it is a Judiciary 

Committee report and advise that you ensure that the public does 

not mistakenly view this as such.

Like each of you, I am committed to ensuring that the FBI performs its functions in the highest manner to protect the safety of 

Americans and the Judiciary Committee has an important role in 

conducting appropriate oversight of the Bureau. I have not refrained from pointing out FBI deficiencies in the past, and will do 

so again, if warranted. Given the obvious dangers in the world 

today, it is even more important that the Committee continue oversight of the FBI to ensure that it fulfills its important mission of 

investigating, detecting and preventing further terrorist attacks on 

our country, without threatening or undermining our country’s 

cherished freedoms. But, as I have said before, I will not support 

oversight efforts, which could be viewed by the public as misleading 

or incomplete, rather than objectively addressing real problems and 

identifying solutions to those problems. Congressional oversight 

80

must have an eye towards reforming the FBI, protecting the American public, and making sure that our country never again has to 

suffer a devastating attack on its soil. 

I fully understand that many so-called ‘‘civil liberties’’ groups 

have complained to the Committee in the past, and will continue 

to complain in the future, that our law enforcement communities 

must perform under additional super-constitutional constraints. 

Despite court cases to the contrary, many continue to argue for requirements beyond what our Constitution demands. I do believe 

that they have the right to express their positions to Congress. I 

also agree that we must ensure that our law enforcement authorities do not violate any provisions of the Constitution, whether 

under the 4th Amendment, the 1st Amendment or any other provisions of our laws. However, I simply don’t share their views, especially since September 11, 2001, that we limit out intelligence and 

law enforcement abilities with requirements that go above and beyond those required by our Constitution, which will tend to have 

the effect of protecting terrorists and criminals while endangering 

the lives of Americans. 

It is important that we remember the events surrounding the 

September 11th attack. FBI Director Robert Mueller was sworn in 

as Director one week before the September 11th attack. When he 

took over the FBI, he took the reins of an organization which had 

been subjected to intense criticism and media coverage due to the 

handling of the McVeigh documents, the Hanssen spy case, and the 

Wen Ho Lee investigation. All of us worked together in a bi-partisan manner and conducted meaningful oversight to each of these 

important issues. Director Mueller accepted the difficult task of 

leading the FBI during this turbulent time as the agency. On September 11th, his challenge increased by several orders of magnitude. 

The Senate Judiciary Committee and the bi-cameral Joint Intelligence Inquiry raised significant issues concerning the FBI’s pre9/11 investigation, particularly in Minneapolis and Phoenix. The 

Joint Intelligence Inquiry reviewed these issues in great detail. 

Moreover, Congress created the bipartisan National Commission to 

Prevent Terrorist Attacks, which is conducting yet another review 

of this issue. Given these numerous inquiries, our focus today, however, should not be on identifying miscues with 20–20 hindsight in 

order to simply embarrass the FBI. Rather, our inquiry should be 

tailored to reforming the FBI with a forward-looking approach 

aimed at giving Director Mueller the support and resources he 

needs to change the direction of the FBI, where needed. The FBI 

needs to be ready to meet the challenges of the future, and in my 

opinion, based on my recent experience both on this Committee and 

on the Intelligence Committee, on which I also serve, I believe FBI 

Director Mueller is willing, able and meeting this challenge. 

Director Mueller’s recent reforms which he initiated after a full 

review, including those that Congress required are being implemented. As we have been briefed, Director Mueller’s reorganization 

plan at FBI headquarters and in the field will improve the FBI’s 

analytic capability; enhance its ability to gather, analyze and disseminate intelligence concerning terrorists and racketeers; further 

its ability to share information internally and with other law enVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00080 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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forcement and intelligence agencies; and decentralize those functions that need to be reallocated to the field while centralizing critical intelligence functions. 

Much of the criticism you cite relates to some of the previous administration’s shortcomings as well as problems caused by our laws 

which the PATRIOT Act that the Senate passed with only one dissenting vote last year have resolved. Moreover, President Bush’s 

recent order instructing the Directors of the Federal Bureau of Investigation, and the Central Intelligence Agency, the Secretary of 

Homeland Security and the Secretary of Defense to develop a Terrorist Threat Integration Center builds on the FBI reforms, and 

will ensure that the FBI is fully integrated into the analysis and 

dissemination of all terrorist-related information. As you well 

know, the Terrorist Threat Integration Center will ensure that law 

enforcement and intelligence agencies work together to share information, to make sure that connections are made, and identify and 

assess all significant threats to our country. 

It is in this context that I now turn to the Interim Report. While 

I appreciate your oversight efforts and the preparation of the Interim Report, I have several significant concerns which are outlined below. In my view, the Interim Report contains several errors 

and omissions. I will identify what I consider to be some of the 

more significant issues. I offer these observations in the hope that 

you may re-examine your analysis of your reported ‘‘oversight,’’ as 

well as some of the more significant conclusions contained in the 

Interim Report. Again, it is my hope that working together we can 

find objective and responsible common ground for a proper oversight. 

A. IMPROVEMENTS IN THE FISA PROCESS

I would hope you agree with me on the importance of the FISA 

process to the intelligence community and law enforcement agencies in order to conduct critical intelligence gathering needed to 

protect our country and prevent further terrorist attacks. Importantly, contrary to the suggestions contained in the Interim Report, 

over the last 18 months the Department and the FBI have made 

great progress in improving the FISA process. Your Interim Report 

does not discuss any of these improvements, and offers only a restatement of complaints that were fully analyzed and, I believe, 

corrected by the Justice Department and the FBI. I suggest this 

only to correct the record so that the public is not left with the impression that the FBI has not corrected past problems, which I believe your Report might well do in parts. 

In addition, the Interim Report significantly omits any discussion 

of perhaps the most significant improvement in the FISA process—

which was the direct result of the Justice Department’s successful 

appeal to the Foreign Intelligence Surveillance Review Court. On 

November 18, 2002, the Review Court issued a unanimous decision 

which largely adopted the Justice Department’s interpretation of 

FISA that: (1) the use of foreign intelligence electronic surveillance 

for criminal purposes is appropriate, particularly in light of Congress’ passage of the PATRIOT Act in 2001, which passed with only 

one dissenting vote in the Senate and which relaxed the prior restrictions on the government’s use of foreign intelligence electronic 

82

1These incidents are under review by the FBI’s and Justice Department’s Offices of Professional Responsibility. The Justice Department briefed the Senate Judiciary Committee staff and 

the Intelligence Committees of these accuracy issues. 

surveillance; and (2) the restrictions imposed by the Clinton Administration on the sharing of information between intelligence 

and law enforcement agencies were unnecessary and not required 

by a 1978 statute authorizing such electronic surveillance nor mandated by the Constitution. This was a very significant point, in my 

opinion. 

1. FISA Application Inaccuracies. Instead of focusing on issues 

arising from implementation of the November 18, 2002 Review 

Court decision, the interim Report repeats and re-hashes issues relating to inaccuracies in past-filed FISA applications, occurring 

nearly two years ago. This issue was addressed fully in prior hearings and oversight inquiries and correspondence. While the FBI 

has acknowledged that there were accuracy problems with the submission of two sets of FISA applications submitted in late 2000 and 

early 2001,1 the Interim Report ignores the fact that the FBI and 

the Justice Department instituted procedural changes to make sure 

that such errors do not occur again. Specifically, as you know, on 

April 5, 2001, the FBI adopted the so-called ‘‘Woods Procedures’’ to 

ensure the accuracy of FISA applications. Among other things, the 

procedures require FBI field offices to review draft FISA applications for accuracy. On May 18, 2001, the Attorney General issued 

a memorandum, copies of which were submitted to the Committee, 

that requires, among other things, direct contact between the Justice Department’s Office of Intelligence and Policy Review and FBI 

field offices and additional FISA training for FBI agents. 

It is also significant to note—which is nowhere mentioned in the 

Interim Report—that since September 11th, the Justice Department has filed more than twice as many emergency FISA applications as it did in the previous 22 years, and it has done so without 

a significant accuracy problem. In April 2002, Judge Royce 

Lamberth, who was then the Presiding Judge of the FISA Court, 

publicly stated, ‘‘we consistently find the [FISA] applications ‘well 

scrubbed’ by the Attorney general and his staff before they are presented to us.’’ He also stated that ‘‘the process is working. It is 

working in part because the Attorney General is conscientiously 

doing his job, as is his staff.’’

2. FISA Application Processing Time. The Interim Report suggests that processing of FISA applications is slow. In my opinion, 

the Interim Report omits, however, any mention of one vital index 

of timeliness—the number of emergency FISAs (cases in which 

there is an emergency requiring a search of surveillance to be conducted before a court order ‘‘can with due diligence be obtained’’)—

has increased dramatically. As the Justice department reported in 

an October 7, 2002 letter to Senator Biden, it conducted 113 emergency FISA searches and surveillances in the one-year period between September 11, 2001, and September 19, 2002, compared to 

a total of only 46 emergency FISAs in the preceding 23 years of the 

statute’s existence. This information, which reflects truly commendable efforts by FBI and Justice Department personnel, is a necessary part of any balanced account of the timeliness of the FISA 

process, and is not acknowledged in the Interim Report. 

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3. Training. The Interim Report suggests that there is a need for 

increased training of FBI and Justice Department personnel, but 

does not acknowledge existing training programs which were established in the latter part of 2002. The Interim report correctly identifies deficiencies in the legal training of FBI personnel handling 

FISA applications prior to the September 11th attack, and specifically outlines how these deficiencies may have contributed to the 

mishandling of a possible FISA search warrant for Zacarias 

Moussaoui’s personal effects before the September 11th attack. On 

this issue, I agree with your analysis and concern, and we have 

heard about this. These allegations were fully discussed and vetted 

during Judiciary Committee and Intelligence Joint Inquiry Hearings in 2002, and I believe have now been addressed by Attorney 

General Ashcroft and FBI Director Mueller. 

Moreover, the Interim Report completely ignores recent and significant steps taken by the Justice Department and the FBI to ensure proper training of FBI personnel. This training program is 

even more critical given the FISC decision of November 18, 2002. 

Specifically, on December 24, 2002, the deputy Attorney General 

instructed the Counsel for Intelligence Policy, the Assistant Attorney General for the Criminal Division, and the Director of the FBI 

to ‘‘jointly establish and implement a training curriculum for all 

Department lawyers and FBI agents who work on foreign intelligence or counterintelligence investigations, both in Washington, 

DC and in the field, including Assistant United States Attorneys 

designated under the Department’s March 6, 2002 Intelligence 

Sharing Procedures. At a minimum, the training shall address the 

FISA process, the importance of accuracy in FISA applications, the 

legal standards (including probable cause) set by FISA, coordination with law enforcement and with the Intelligence Community, 

and the proper storing and handling of classified information.’’

B. COOPERATION OF THE JUSTICE DEPARTMENT

Throughout the Interim Report, you have suggested that the Department of Justice has not cooperated with the Committee’s oversight requests for information. As Chairman of the Committee, I 

disagree with this criticism for the following reasons stated below. 

I am aware of the Justice Department’s letter to you dated September 13, 2002, which describes in detail all of the information 

made available to you in response to specific oversight requests. As 

noted in the letter, the Justice Department provided access to: (1) 

FBI supervisors, including a Supervisory Special Agent, a Headquarters Unit Chief, and a Deputy General Counsel, who briefed 

Judiciary Committee staff on 7 separate occasions (February 24, 

April 17, April 24, June 3, June 4, June 27 and July 9, 2002); (2) 

senior Justice Department officials, including the Counsel for Intelligence Policy and Associate Deputy Attorney General, who briefed 

Judiciary Committee staff on 8 separate occasions (June 3, June 

27, July 27, August 23, August 28, August 29, September 3 and 

September 6, 2002), and testified at open hearings on September 

10, 2002; (3) numerous documents which were submitted in response to requests from your staff; and (4) written responses to 

over 300 questions for the record, with hundreds of additional quesVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00083 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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tions set forth in sub-parts, totaling over 300 pages, in response to 

oversight requests from the House and Senate Judiciary. 

In addressing this issue, you ignore the extensive and vigorous 

oversight which occurred with the full cooperation of the Justice 

Department. In particular, the Interim Report describes, and even 

quotes from, a number of full Committee hearings with senior Justice Department and FBI officials on July 31, 2001; November 28, 

2001; December 6, 2001; March 21, 2002; April 9, 2002; May 8, 

2002; June 6, 2002; July 25, 2002; and September 10, 2002. Further, as the Interim Report acknowledges (page 16), ‘‘these are only 

the full Judiciary Committee hearings related to the FBI oversight 

issues in the 107th Congress. The Judiciary Committee’s subcommittees also convened numerous, bipartisan oversight hearings 

relating to the FBI’s performance both before and after 9/11.’’ The 

Interim Report also notes that members and staff ‘‘conducted a series of closed hearings, briefings and made numerous written inquiries’’ on FISA issues, and submitted ‘‘written inquiries, written 

hearing questions and other informal requests,’’ including letters to 

the Attorney General and the FBI Director dated November 1, 

2001; May 23, 2002; June 4, 2002; June 13, 2002; July 3, 2002; and 

July 31, 2002. Thus, contrary to your general claims of lack of cooperation, your Interim Report demonstrates unequivocally that 

the Justice Department has cooperated by providing access to numerous senior officials, responsible personnel, and volumes of documents. This cooperation should be commended not condemned if we 

are to have constructive oversight. 

The Interim Report also criticizes, and in my opinion unfairly, 

the Justice Department for refusing to release the May 17, 2002 

opinion of the Foreign Intelligence Surveillance Court—the Department informed the Committee of the existence of the opinion in 

early June 2002—without the permission of the FISC. As the Justice Department explained, however, it generally must respect the 

prerogative of courts to control the release of their own opinions, 

particularly where, as here, the opinion in question was unprecedented. The Justice Department, the FISA, concluded that it was 

the FISA’s decision whether or not to release publicly the May 17 

opinion; ultimately, the FISA’s opinion and order was made available to Congress and the public by the FISA itself in response to 

a request from the Committee. The FISA also advised the Committee in writing of its intent to make public unclassified opinions 

in the future. 

C. EXISTING CONGRESSIONAL FISA OVERSIGHT

The Interim Report calls for more oversight of the FISA process. 

However, the Interim Report fails to describe accurately existing 

Congressional oversight of the FISA process. The Justice Department already provides significant information—classified and unclassified—to the Intelligence Committees, consistent with long-established practices for the disclosure and handling of classified information. In reporting to the Intelligence Committees, the Justice 

Department is required to ‘‘fully inform’’ the Intelligence Committees concerning FISA electronic surveillance, physical searches, pen 

registers and trap and traces, and requests for records (50 U.S.C. 

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porting obligations to the Judiciary Committees are much more generic. 50 U.S.C. Sections 1826, 1846(b), 1862(b). 

As you may be aware, the ‘‘fully inform’’ standard that governs 

FISA oversight is the same standard that governs Congressional 

oversight of the intelligence community in general. See S. Rep. No. 

95–604, 95th Cong., 1st Sess. 60–61 (1977); S. Rep. No. 95–701, 

95th Cong., 2d Sess. 67–68 (1978); see also, H.R. Rep. No. 95–1283, 

pt. 1, 95th Cong., 2d Sess. 96 (1978). Such a requirement reflects 

a careful balance between the need for meaningful oversight and 

the need for secrecy and information security in the government’s 

efforts to protect this country from foreign enemies. Under the 

‘‘fully inform’’ standard, the Justice Department submits lengthy 

and detailed classified semi-annual reports to the Intelligence Committees, including specific information on ‘‘each criminal case in 

which information acquired [from a FISA electronic surveillance] 

has been authorized for use at trial, 1150 U.S.C. Section 

1808(a)(2)(B), and ‘‘the number of physical searches which involved 

searches of the residences, offices or personal property of United 

States persons,’’ 50 U.S.C. Section 1826(3). Moreover, under current law, the Attorney General makes public ‘‘the total number of 

applications made for orders and extensions of orders’’ approving 

electronic surveillance and physical searches under FISA, and ‘‘the 

total number of such orders and extensions either granted, modified or denied.’’ 50 U.S.C. Section 1807, 1826. 

In addition to my service on the Senate Judiciary Committee, I 

have served for the past six years on the Senate Select Committee 

on Intelligence, where I have participated in vigorous oversight of 

the FISA process. Based on my experience, I can assure you that 

the Congress exercises appropriate, vigorous, robust and detailed 

oversight of the FISA process. Again, I thought that this is important to note, as I did not want your Report to leave the impression 

with the public that the FISA process is somehow unchecked by 

Congress. 

I want to reiterate my hope and insistence that we engage in 

proper and constructive oversight to provide the American public 

the most important check on the most important functions of our 

government, our law enforcement and intelligence functions. Meaningful oversight requires a fair and balanced approach if we are to 

be obtain useful reforms where needed. As you fully appreciate, 

after September 11, 2001, we are in a new era as Congress realized 

in passing the Patriot Act with near unanimous approval, and with 

only one dissenting Senate vote. The security of our country is at 

stake, and we owe American people our full cooperation in discharging our Constitutional functions in addressing these critical 

issues. 

Sincerely, 

ORRIN G. HATCH, 

Chairman. 

(86)

XII. APPENDIX C—LETTER FROM THE DEPARTMENT OF JUSTICE TO

SENATE SELECT COMMITTEE ON INTELLIGENCE CHAIRMAN

GRAHAM AND VICE-CHAIRMAN SHELBY, DATED AUGUST 6, 2002

U.S. DEPARTMENT OF JUSTICE, 

OFFICE OF LEGISLATIVE AFFAIRS, 

Washington, DC, August 6, 2002. 

Hon. BOB GRAHAM, 

Chairman, 

Hon. RICHARD C. SHELBY, 

Vice-Chairman, 

Select Committee on Intelligence, U.S. Senate, Washington, DC 

DEAR CHAIRMAN GRAHAM AND VICE-CHAIRMAN SHELBY: We appreciate the care shown by Senator Edwards and the staff of the 

Senate Select Committee on Intelligence (‘‘SSCI’’) in the drafting of 

the proposed bill to require additional public disclosures regarding 

the use of the Foreign Intelligence Surveillance Act of 1978 

(‘‘FISA’’), 50 U.S.C. § 1801 et seq. We also appreciate the underlying concern of Senator Edwards that data on the use of FISA, to 

the extent prudent, be made available to the public. 

We must nonetheless state our opposition, on policy grounds, to 

the draft bill. Section 107 of FISA, 50 U.S.C. § 1807, already requires that the Attorney General provide, on an annual basis, data 

on the use of FISA to the Administrative Office of the United 

States Courts and to Congress. Under this section, the Attorney 

General must report the total number of applications made for orders and extensions of orders approving electronic surveillance 

under FISA, and the total number of such orders and extensions 

either granted, modified, or denied. Though not required under the 

Act, the Attorney General also reports such data on physical 

searches applied for under FISA. These data and reports are made 

in unclassified form and are therefore available to the public. 

Under section 108 of FISA, 50 U.S.C. § 1808, the Attorney General also provides the SSCI and the House Permanent Select Committee on Intelligence (‘‘HPSCI’’) with classified semi-annual reports containing much more extensive data on the use of FISA and 

a review of any significant legal and operational developments that 

have occurred during the previous 6 months. These are long and 

detailed reports that are painstakingly prepared in the Justice Department and are obviously, from the questions and comments they 

generate, closely scrutinized by the intelligence committees. We 

have appreciated the engagement of the Members and staff of SSCI 

and HPSCI in responding to these reports and in helping to make 

them a better tool for congressional oversight of the Justice Department’s use of FISA. Under FISA, 50 U.S.C. § 1826, the Attorney 

General also makes a separate, semi-annual classified report to 

SSCI and HPSCI and to the Judiciary Committee of each House on 

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the use of physical searches under FISA and, in particular, on the 

use of physical searches under the Act against United States persons. In addition to these reports, the Attorney General and the 

Department of Justice have responded informally and formally, at 

all times during the year, to questions and issues that arise in 

these committees on the use of FISA. 

Senator Edwards’ draft legislation would amend sections 1807 

and 1826 to require additional public disclosures of: 

(1) the number of U.S. persons targeted for electronic surveillance and physical search under FISA; and 

(2) in a manner consistent with the protection of national security, ‘‘significant interpretations’’ of FISA by the Foreign Intelligence Surveillance Court (‘‘FISC’’), including, as appropriate, redacted portions of opinions and orders of the FISC. 

Under sections 1808 and 1826, the Justice Department currently 

provides the SSCI and HPSCI with these numbers and with a summary of significant legal and operational developments in FISA in 

its classified semi-annual reports. The FISC also has, on a very few 

occasions, issued procedural rules or rulings that are unclassified 

and therefore available at the Court’s initiative to Congress and 

the public. 

However, except for those few rules and rulings, there is very little in the decisions of the FISC that does not discuss the facts, the 

techniques, or the pleading of specific and highly classified operations under FISA. There is even less in those decisions and in the 

numbers that would be disclosed in the proposed legislation that 

would not reveal patterns of practice under FISA that would help 

our adversaries elude the eyes and ears of United States intelligence. For example, the numbers of United States persons targeted under FISA might reveal the extent to which status as a 

United States person, as a practical or operational matter, provides 

refuge from scrutiny under FISA. An interpretation by the FISC of 

the applicability of FISA to a technique or circumstance, no matter 

how conceptually drawn, could provide our adversaries with clues 

to relative safe harbors from the reach of FISA. The terrorists who 

remain at large in the United States (and likely the ones who will 

follow) are sophisticated in their communications tradecraft and 

sensitive to the possible use of FISA against them. They, more 

than may be apparent to Congress or to the public, may learn from 

any further disclosures of FISA practice and interpretations how 

better to defeat the tools of scrutiny under that Act. 

Section 107 of FISA and 50 U.S.C. § 1826, which this bill would 

alter, have not been amended since their original enactments in 

1978 and 1994, respectively. This suggests to us that Congress and 

its constituents believe, as we do, that the proper forum for the disclosure of FISA operations remains in the secure rooms of the intelligence committees and not, any more than is currently provided 

for in section 107, in the public domain, which is available to our 

adversaries. In our view, the centrality and sensitivity of FISA to 

our ongoing national effort against terrorism makes this a particularly inappropriate time to provide our adversaries with any more 

data on the tools we are using so effectively against them. 

The Administration strongly believes that our use of the necessarily secret tool of FISA must, as set forth by the framers of the 

88

Act, be made subject to the keen and diligent scrutiny of the intelligence committees. But we believe just as strongly that it is there, 

rather than in any forum accessible to our adversaries, that the 

data on FISA operations described in this proposed legislation 

should be disclosed. 

Thank you for the opportunity to present our views. Please do 

not hesitate to call upon us if we may be of additional assistance. 

The Office of Management and Budget has advised us that from 

the perspective of the Administration’s program, there is no objection to submission of this letter. 

Sincerely, 

DANIEL J. BRYANT, Assistant Attorney General. 

(89)

XIII. APPENDIX D—LETTER FROM THE DEPARTMENT OF JUSTICE TO

JUDICIARY COMMITTEE CHAIRMAN LEAHY, DATED DECEMBER 23, 

2002

U.S. DEPARTMENT OF JUSTICE, 

OFFICE OF LEGISLATIVE AFFAIRS, 

Washington, DC, December 23, 2002. 

Hon. PATRICK J. LEAHY,

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: Enclosed please find a response to your 

written question submitted to the Deputy Attorney General at the 

hearing before the Senate Judiciary Committee on May 8, 2002. We 

are providing a response to question 19 relating to the changes section 215 of the USA PATRIOT Act made to provisions of the Foreign Intelligence Surveillance Act (FISA). The Department is continuing to gather information to answer the remaining questions 

posed to the Deputy Attorney General and the Director of the Federal Bureau of Investigation, and we will forward those responses 

as soon as possible. 

Please note that the response to question 19 requires the Department to provide information that is classified at the SECRET level. 

That classified information is being delivered to the Committee 

under separate cover and in accordance with the longstanding Executive branch practices on the sharing of operational intelligence 

information with Congress. 

We appreciate your oversight interest in the Department’s activities pursuant to the USA PATRIOT Act. We look forward to continuing to work with the Committee as the Department implements these important new tools for law enforcement in the fight 

against terrorism. If we can be of further assistance on this, or any 

other matter, please do not hesitate to contact this office. 

Sincerely, 

DANIEL J. BRYANT, 

Assistant Attorney General. 

Enclosure.

QUESTIONS SUBMITTED BY CHAIRMAN LEAHY

Questions for Director Mueller and Deputy Attorney General 

Thompson 

19. Section 215 of the Patriot Act allows all FBI Special Agents 

in Charge to obtain court orders requiring the production of ‘‘any 

tangible things (including books, records, papers, documents, and 

other items)’’ in connection with terrorism investigations. There 

have been reports that this authority is being used to obtain 

records, without showing probable cause that a crime has been 

90

committed, from a library or bookstore about what books a person 

has signed our or purchased. 

(a) Has the FBI, in fact, requested such records in any investigation of terrorism? 

Answer. Section 215 amended the business records authority 

found in Title V of the Foreign Intelligence Surveillance Act 

(FISA). Under the old language, the FISA Court would issue an 

order compelling the production of certain defined categories of 

business records upon a showing of relevance and ‘‘specific and 

articulable facts’’ giving reason to believe that the person to whom 

the records related was an agent of a foreign power. The USA PATRIOT Act changed the standard to simple relevance and gives the 

FISA Court the authority to compel production in relation to an authorized investigation to protect against international terrorism or 

clandestine intelligence activities, provided that such investigation 

of a U.S. person is not conducted solely upon the basis of activities 

protected by the First Amendment to the Constitution. 

The classified semi-annual report discussing the use of sections 

1861–1863 of FISA for the period June 30, 2001 through December 

31, 2001 was provided to the Intelligence and Judiciary committees 

of both houses of Congress on April 29, 2002. That report was provided under cover letter to each committee chairman. Although not 

specified in the statute, the Department’s practice has been to submit the reports covering January 1 through June 30 of a given 

year, by the end of December of that year. The Department of Justice is currently preparing the semi-annual report covering the period January 1, 2002 through June 30, 2002. 

The Department is able at this time to provide information pertaining to the implementation of section 215 of the USA PATRIOT 

Act from January 1, 2002 to the present (December 23, 2002). That 

information is classified at the SECRET level and, accordingly, is 

being delivered to the Committee under separate cover. 

(b) Can such an order be served on a public library to require the 

library to produce records about where a library patron has surfed 

on the Internet? Has such an order been sought by the Department 

or the FBI? 

Answer. Such an order could conceivably be served on a public 

library although it is unlikely that public libraries maintain those 

types of records. If the FBI were authorized to obtain the information the more appropriate tool for requesting electronic communication transactional records would be a National Security Letter 

(NSL). NSLs can be served on Internet Service Providers to obtain 

information such as subscriber name, screen name or other on-line 

names, records identifying addresses of electronic mail sent to and 

from the account, records relating to merchandise orders/shipping 

information, and so on but not including message content and/or 

subject fields. 

(c) Do you think that library and bookstore patrons have a ‘‘reasonable expectation of privacy’’ in the titles of the books they have 

purchased from a bookstore or borrowed from a library? 

Answer. Any right of privacy possessed by library and bookstore 

patrons in such information is necessarily and inherently limited 

since, by the nature of these transactions, the patron is reposing 

that information in the library or bookstore and assumes the risk 

91

that the entity may disclose it to another. Whatever privacy interests a patron may have are outweighed by the Government’s interest in obtaining the information in cases where the FBI can show 

the patron’s relevance to an authorized full investigation to protect 

against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is 

not conducted solely upon the basis of activities protected by the 

First Amendment to the Constitution. 

U.S. DEPARTMENT OF JUSTICE, 

OFFICE OF LEGISLATIVE AFFAIRS, 

Washington, DC, December 23, 2002. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: Enclosed please find responses to written 

questions to the Attorney General at the hearing before the Committee on the Judiciary entitled ‘‘Oversight Hearing of the Department of Justice’’ on July 25, 2002. We are providing responses to 

questions 14, 15, 31, 32, 33 and 34, all of which relate to the implementation of the USA PATRIOT Act, the changes the Act made to 

provisions of the Foreign Intelligence Surveillance Act (FISA), and 

the FISA process itself. The Department is continuing to gather information to answer the remaining questions posed to the Attorney 

General and we will forward those responses as soon as possible. 

Please note that the response to question 14(b) requires the Department to provide information that is classified at the SECRET 

level. That classified information is being delivered to the Committee under separate cover and under the longstanding Executive 

branch practices on the sharing of operational intelligence information with Congress. 

We appreciate your oversight interest in the Department’s activities pursuant to the USA PATRIOT Act. We look forward to continuing to work with the Committee as the Department implements these important new tools for law enforcement in the fight 

against terrorism. If we can be of further assistance on this, or any 

other matter, please do not hesitate to contact this office. 

Sincerely, 

DANIEL J. BRYANT, 

Assistant Attorney General. 

Enclosure. 

WRITTEN QUESTIONS OF SENATOR PATRICK LEAHY, CHAIRMAN OF

THE SENATE JUDICIARY COMMITTEE TO THE HONORABLE JOHN

ASHCROFT

USA PATRIOT Act and Libraries 

14. The Committee has learned of growing concern among professional librarians that the USA PATRIOT Act is leading to a greater 

number of federal law enforcement demands for records of the use 

of library services, as well as orders to librarians to keep those requests secret. There is confusion over whether the orders allow the 

librarians to disclose the fact of a request, without disclosing any 

92

substance such as the name of the person involved. It is also not 

clear whether these secrecy orders are being issued for general law 

enforcement purposes beyond the scope of the Foreign Intelligence 

Surveillance Act. 

(A) Please clarify what the Department is doing to impose secrecy on its demands for information from libraries. 

A Court order issued pursuant to section 1861 of FISA (amended 

by section 215 of the USA PATRIOT Act) to compel the production 

of certain defined categories of business records would contain language which prohibits officers, employees or agents of companies or 

institutions receiving such an order from disclosing to the target or 

to persons outside the company or institution the fact that the FBI 

has sought or obtained access to those defined categories of business records. 

An FBI National Security Letter served upon an establishment, 

such as a library, for the purpose of obtaining electronic communications transactional records, contains language invoking Title 

18, United States Code, Section 2709(c), which prohibits any officer, employee, or agent of the establishment from disclosing to any 

person that the FBI has sought or obtained access to that information or records. 

(B) How many demands for library information has the Department made since enactment of the USA PATRIOT Act, as well as 

the legal authority that was used to require secrecy? 

Section 215 of the USA PATRIOT Act amended the business 

records authority found in Title V of the Foreign Intelligence Surveillance Act (FISA). This authority can be used to obtain certain 

types of records from libraries that relate to FBI foreign intelligence investigations. Under the old language, the Foreign Intelligence Surveillance Court (FISC) would issue an order compelling 

the production of certain defined categories of business records 

upon a showing of relevance and ‘‘specific and articulable facts’’ giving reason to believe that the person to whom the records related 

was an agent of a foreign power. The USA PATRIOT Act changed 

the standards to simple relevance and gives the FISC the authority 

to compel production in relation to an authorized investigation to 

protect against international terrorism or clandestine intelligence 

activities, provided that such investigation of a U.S. person is not 

conducted solely upon the basis of activities protected by the First 

Amendment to the Constitution. 

The classified semi-annual report discussing the use of sections 

1861–1863 of FISA for the period June 30, 2001 through December 

31, 2001 was provided to the Intelligence and Judiciary committees 

of both houses of Congress on April 29, 2002. That report was provided under cover letter to each committee chairman. Although not 

specified in the statute, the Department’s practice has been to submit the reports covering January 1 through June 30 of a given 

year, by the end of December of that year. The Department of Justice is currently preparing the semi-annual report covering the period January 1, 2002 through June 30, 2002. 

The Department is able at this time to provide information pertaining to the implementation of section 215 of the USA PATRIOT 

Act from January 1, 2002 to the present (December 23, 2002). That 

93

information is classified at the SECRET level and, accordingly, is 

being delivered to the Committee under separate cover. 

(C) How many libraries has the FBI visited (as opposed to presented with court orders) since passage of USA Patriot Act? 

Information has been sought from libraries on a voluntary basis 

and under traditional law enforcement authorities not related to 

the Foreign Intelligence Survelliance Act or the changes brought 

about by the USA PATRIOT Act. While the FBI does not maintain 

statistics on the number of libraries visited by FBI Agents in the 

course of its investigations, an informal survey conducted by the 

FBI indicated that field offices had sought information from libraries. For example, various offices followed up on leads concerning email and Internet use information about specific hijackers from 

computers in public libraries. 

(D) Is the decision to engage in such surveillance subject to any 

determination that the surveillance is essential to gather evidence 

on a suspect which the Attorney General has reason to believe may 

be engaged in terrorism-related activities and that it could not be 

obtained through any other means? 

The authority to compel the production of business records from 

libraries does not permit any type of ‘‘surveillance.’’ Under the Foreign Intelligence Surveillance Act (FISA), electronic surveillance 

authority is permissible upon a showing of probable cause that the 

target of the surveillance is a foreign power or any agent of a foreign power and each of the facilities or places at which the surveillance is being directed is being used or is about to be used by a 

foreign power or an agent of a foreign power. 

As stated above, section 215 of the USA PATRIOT Act amended 

the business records authority found in Title V of FISA. This authority can be used for obtaining certain types of records from libraries that relate to FBI foreign intelligence investigations. Under 

the old language, the FISC would issue an order compelling the 

production of certain defined categories of business records upon a 

showing of relevance and ‘‘specific and articulable facts’’ giving reason to believe that the person to whom the records related was an 

agent of a foreign power. The PATRIOT Act changed the standards 

to simple relevance and gives the FISC the authority to compel 

production in relation to an authorized investigation to protect 

against international terrorism or clandestine intelligence activities, provide that such investigation of a U.S. person is not conducted solely upon the basis of activities protected by the First 

Amendment to the Constitution. 

15. Sec. 215 of the Act expands the range of records that can be 

requested from a library or educational institution to include ‘‘business records’’ which may include information about individuals beyond the target of an investigation. What precautions is the Attorney General taking to isolate out only those records related to a 

specific target? How is the Attorney General ensuring the security 

and confidentiality of the records of others? How promptly have 

those records been returned to the institutions from which they 

were obtained? 

The current standard for obtaining business records is ‘‘relevance’’ but it requires more than just the Special Agent’s belief 

that the records may be related to an ongoing investigation. Use 

94

of this technique is authorized only in full investigations properly 

opened in accordance with the Attorney General Guidelines for FBI 

Foreign Intelligence Collection and Foreign Counterintelligence Investigations (FCIG). The FISA business records authority stipulates that no investigation of a U.S. person may be conducted solely 

on the basis of activities protected by the First Amendment to the 

Constitution. The FISA Court will not order the production of business records unless it can be shown that the individual for whom 

the records are being sought is related to an authorized investigation. 

The security and confidentiality of records is guaranteed by the 

FISA law which prohibits officers, employees or agents of companies or institutions receiving orders from disclosing to the target or 

to persons outside the company or institution the fact that the FBI 

has sought or obtained access to information or records. The FBI 

obtains copies, not originals, of records from companies and institutions. Thus, there is no need to return records. 

FBI Headquarters has charged field offices with the responsibility for establishing and enforcing appropriate review and approval processes for use of these expanded authorities. Compliance 

with these and other requirements is monitored through inspections and audits conducted by the FBI Inspection Division, the Intelligence Oversight Board, and the Department’s Office of Intelligence Policy and Review. 

U.S. DEPARTMENT OF JUSTICE, 

OFFICE OF LEGISLATIVE AFFAIRS, 

Washington, DC, December 23, 2002. 

Hon. RUSSELL D. FEINGOLD,

Chairman, Subcommittee on the Constitution, 

Committee on the Judiciary, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: Enclosed please find responses to two 

questions posed to the Attorney General on implementation of the 

USA PATRIOT Act in your letter of July 24, 2002. We are providing responses to questions 2 and 4 relating to the changes the 

USA PATRIOT Act made to provisions of the Foreign Intelligence 

Surveillance Act. 

Please note that the responses to both questions 2 and 4 require 

the Department to provide information classified at the SECRET 

level. That classified information is being delivered under separate 

cover and under the longstanding Executive branch practices on 

the sharing of operational intelligence information with Congress. 

The Department is continuing to gather information responsive 

to the remaining questions posed in your letter and we will forward 

the responses to you as soon as possible. We note that in response 

to question 7 of your letter, copies of the Department’s responses 

to the House Judiciary Committee’s letter of June 13, 2002 on USA 

PATRIOT Act implementation were forwarded to your staff on July 

29, 2002 and August 26, 2002. 

We appreciate your oversight interest in the Department’s activities pursuant to the USA PATRIOT Act. We look forward to continuing to work with the Committee as the Department impleVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00094 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
95

ments these important new tools for law enforcement in the fight 

against terrorism. 

If we can be of further assistance on this, or any other matter, 

please do not hesitate to contact this office. 

Sincerely, 

DANIEL J. BRYANT, 

Assistant Attorney General. 

Enclosure.

Feingold PATRIOT Act Question #2 and #4 (from letter dtd July 

24, 2002) 

2. Section 215 of the Act grants the FBI broad new power to subpoena business records for investigations to protect against international terrorism. 

a. Please (i) provide the number of instances in which the FBI 

or other federal agencies have invoked this subpoena power and (ii) 

indicate the type of businesses served with the subpoena (e.g., libraries, bookstores, internet booksellers, etc.). 

b. How many entities have challenged the subpoena and the information sought? If any institutions have objected to or challenged 

the validity or scope of the subpoena, what has been the nature of 

the objection? 

c. How many of these subpoenas have resulted in the collection 

of information that would otherwise be protected by state or federal 

privacy protection laws (e.g., medical, financial, educational or library records)? 

d. How many of these subpoenas have directly led to the prosecution of terrorists or the prevention of acts of terrorism? For each 

subpoena that has led to the prosecution of terrorists or the prevention of acts of terrorism, please describe the prosecution or act 

of terrorism that was prevented. 

e. How many subpoenas have been sought and granted to obtain 

the records of persons not the target of an investigation? For each 

such subpoena, please explain why the Department sought the subpoena. 

f. Please provide copies of all policy directives or guidance issued 

to law enforcement officials about requesting subpoenas pursuant 

to Section 215. 

Answer. Section 215 of the USA PATRIOT ACT amended FISA 

(50 U.S.C. §§ 1861–1862) (access to certain business records for foreign intelligence and international terrorism investigations), and 

repeals section 1863. This provision of FISA concerns the ability of 

the FBI to make an application to the Court ‘‘for an order requiring 

the production of any tangible things (including books, records, papers, documents, and other items)’’ as long as the information is requested for the appropriate reasons as defined in that section of 

FISA. Under the old language, the FISA Court would issue an 

order compelling the production of certain defined categories of 

business records upon a showing of relevance and ‘‘specific and 

articulable facts’’ giving reason to believe that the person to whom 

the records related was an agent of a foreign power. The USA PATRIOT Act changed the standard to simple relevance and gives the 

FISA Court the authority to compel production in relation to an authorized investigation to obtain foreign intelligence information to 

96

protect against international terrorism or clandestine intelligence 

activities, provided that such investigation of a U.S. person is not 

the conducted solely upon the basis of activities protected by the 

First Amendment to the Constitution.

The classified semi-annual report discussing the use of sections 

1861–1863 of FISA for the period June 30, 2001 through December 

31, 2001 was provided to the Intelligence and Judiciary committees 

of both houses of Congress on April 29, 2002. That report was provided under cover letter to each committee chairman. Although not 

specified in the statute, the Department’s practice has been to submit the reports covering January 1 through June 30 of a given 

year, by the end of December of that year. The Department of Justice is currently preparing the semi-annual report covering the period January 1, 2002 through June 30, 2002. 

The Department is able at this time to provide information pertaining to the implementation of section 215 of the USA PATRIOT 

Act from January 1, 2002 to the present (December 23, 2002). That 

information is classified at the SECRET level and, accordingly, is 

being delivered to the Committee under separate cover. 

It should be noted that information has been sought from libraries on a voluntary basis and under traditional law enforcement authorities not related to the Foreign Intelligence Surveillance Act or 

the changes brought about by the USA PATRIOT Act. While the 

FBI does not maintain statistics on the number of libraries visited 

by FBI Agents in the course of its investigations, an informal survey conducted by the FBI indicated that field offices have sought 

information from libraries. For example, various offices followed up 

on leads concerning e-mail and Internet use information about specific hijackers from computers in public libraries. 

Policy guidance or directives to law enforcement on Section 215: 

On October 26, 2001, the FBI’s Office of General Counsel, National 

Security Law Unit, issued guidance to all FBI Divisions, including 

all FBI Headquarters and field offices, that summarized the 

changes made by the USA PATRIOT Act, including the changes 

made by section 215 of the Act. A copy of that memorandum is provided herewith.

4. Section 206 of the Act provides federal law enforcement with 

authority to conduct roving surveillance of targets. 

a. How many FISA warrants have been issued pursuant to Section 206? 

The number of times the Department has obtained authority for 

the ‘‘roving’’ surveillance provided under section 206 of the USA 

PATRIOT Act is classified at the SECRET level. Pursuant to the 

longstanding Executive Branch practice on sharing operational intelligence information with Congress, the Department will provide 

that number to the Senate Select Committee on Intelligence 

(‘‘SSCI’’), which is the committee responsible for receiving and handling sensitive intelligence information. This number will be provided to the SSCI under separate cover and with the expectation 

that it will be handled in a manner deemed appropriate under 

longstanding applicable Senate procedures.

We can, in this unclassified format, make the assurance that the 

Department’s request for use of such authority, based upon a determination by the Foreign Intelligence Surveillance Court that there 

97

is probable cause to believe that the actions of the target of surveillance may have the effect of thwarting the identification of those 

carriers whose assistance will be necessary to carrying out the 

Court’s orders, has been limited to those cases where the surveillance ordered by the Court would otherwise be, or would otherwise 

likely be, in jeopardy. 

b. What percentage of surveillance conducted pursuant to Section 

206 has included surveillance of persons other than the target individual against whom the warrant was issued? 

The intercepted communications of individuals other than the 

targets of Court-authorized surveillance are minimized according to 

procedures established in Attorney General guidelines and approved by the Foreign Intelligence Surveillance Court. The same 

standard minimization procedures apply to the communications 

intercepted under the surveillance authority granted pursuant to 

section 206 of the USA PATRIOT Act as apply to communications 

intercepted under any other Court-authorized surveillance under 

FISA. The percentage of the minimized communications of individuals other than the target individual conducted pursuant to section 

206 of the USA PATRIOT Act is a statistic that is not maintained 

by the FBI and is therefore not readily retrievable. 

c. For each surveillance conducted under this section, how many 

non-target persons were included in the surveillance? 

As stated above, the intercepted communications of individuals 

other than the targets of Court-authorized surveillance are minimized according to procedures established in Attorney General 

guidelines and approved by the Foreign Intelligence Surveillance 

Court. The same standard minimization procedures apply to the 

communications intercepted under the surveillance authority 

granted pursuant to section 206 of the USA PATRIOT Act as apply 

to communications intercepted under any other Court-authorized 

surveillance under FISA. The number of minimized communications of non-target individuals for each surveillance conducted pursuant to section 206 of the USA PATRIOT Act is a statistic that 

is not maintained by the FBI and is therefore not readily retrievable. 

d. Please disclose all policy directives or guidelines issued to law 

enforcement officials who request and conduct this type of surveillance authority. 

On October 26, 2001, the FBI’s Office of General Counsel, National Security Law Unit, issued guidance to all FBI Divisions, including all FBI Headquarters and field offices, that summarized 

the changes made by the USA PATRIOT Act, including the 

changes made by section 206 of the Act. A copy of that memorandum is provided herewith. 

(98)

XIV. APPENDIX E—LETTER FROM THE DEPARTMENT OF JUSTICE TO

SENATE SELECT COMMITTEE ON INTELLIGENCE CHAIRMAN

GRAHAM AND VICE-CHAIRMAN SHELBY, DATED JULY 31, 2002

U.S. DEPARTMENT OF JUSTICE, 

OFFICE OF LEGISLATIVE AFFAIRS, 

Washington, DC, July 31, 2002. 

Hon. BOB GRAHAM, 

Chairman, Select Committee on Intelligence, 

U.S. Senate, Washington, DC. 

Hon. RICHARD C. SHELBY, 

Vice-Chairman, Select Committee on Intelligence, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN AND MR. VICE CHAIRMAN: The letter presents the views of the Justice Department on S. 2586, a bill ‘‘[t]o 

exclude United States persons from the definition of ‘foreign power’

under the Foreign Intelligence Surveillance Act of 1978 relating to 

international terrorism.’’ The bill would extend the coverage of the 

Foreign Intelligence Surveillance Act (‘‘FISA’’) to individuals who 

engage in international terrorism or activities in preparation therefor without a showing of membership in or affiliation with an international terrorist group. The bill would limit this type of coverage 

to non-United States persons. The Department of Justice supports 

S. 2586. 

We note that the proposed title of the bill is potentially misleading. The current title is ‘‘To exclude United States persons from 

the definition of ‘foreign power’ under the Foreign Intelligence Surveillance Act of 1978 relating to international terrorism.’’ A better 

title, in keeping with the function of the bill, would be something 

along the following lines: ‘‘To expand the Foreign Intelligence Surveillance Act of 1978 (‘FISA’) to reach individuals other than 

United States persons who engage in international terrorism without affiliation with an international terrorist group.’’

Additionally, we understand that a question has arisen as to 

whether S. 2586 would satisfy constitutional requirements. We believe that it would. 

FISA allows a specially designated court to issue an order approving an electronic surveillance or physical search, where a significant purpose of the surveillance or search is ‘‘to obtain foreign 

intelligence information.’’ Id. §§ 1804(a)(7)(B), 1805(a). Given this 

purpose, the court makes a determination about probable cause 

that differs in some respects from the determination ordinarily underlying a search warrant. The court need not find that there is 

probable cause to believe that the surveillance or search, in fact, 

will lead to foreign intelligence information, let alone evidence of 

a crime, and in many instances need not find probable cause to believe that the target has committed a criminal act. The court inVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00098 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
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stead determines, in the case of electronic surveillance, whether 

there is probable cause to believe that ‘‘the target of the electronic 

surveillance is a foreign power or an agent of a foreign power,’’ id.

§ 1805(a)(3)(A), and that each of the places at which the surveillance is directed ‘‘is being used, or about to be used, by a foreign 

power or an agent of a foreign power,’’ id. § 1805(a)(3)(B). The court 

makes parallel determinations in the case of a physical search. Id.

§ 1842(a)(3)(A), (B). 

The terms ‘‘foreign power’’ and ‘‘agent of a foreign power’’ are defined at some length, id. § 1801(a), (b), and specific parts of the 

definitions are especially applicable to surveillances or searches 

aimed at collecting intelligence about terrorism. As currently defined, ‘‘foreign power’’ includes ‘‘a group engaged in international 

terrorism or activities in preparation therefor,’’ id. § 1801(a)(4) (emphasis added), and an ‘‘agent of a foreign power’’ includes any person who ‘‘knowingly engages in sabotage or international terrorism 

or activities that are in preparation therefor, for or on behalf of a 

foreign power,’’ id. § 1801(b)(2)(C). ‘‘International terrorism’’ is defined to mean activities that 

(1) involve violent acts or acts dangerous to human life that 

are a violation of the criminal laws of the United States or of 

any State, or that would be a criminal violation if committed 

within the jurisdiction of the United States or any State; 

(2) appear to be intended— (A) to intimidate or coerce a civilian population; 

(B) to influence the policy of a government by intimidation or coercion; or 

(C) to affect the conduct of a government by assassination or kidnapping; and 

(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or 

seek asylum. 

Id. § 1801(c).

S. 2586 would expand the definition of ‘‘foreign power’’ to reach 

persons who are involved in activities defined as ‘‘international terrorism,’’ even if these persons cannot be shown to be agents of a 

‘‘group’’ engaged in international terrorism. To achieve this expansion, the bill would add the following italicized words to the current 

definition of ‘‘foreign power’’: ‘‘any person other than a United 

States person who is, or a group that is, engaged in international 

terrorism or activities in preparation therefor.’’

The courts repeatedly have upheld the constitutionality, under 

the Fourth Amendment, of the FISA provisions that permit 

issuance of an order based on probable cause to believe that the 

target of a surveillance or search is a foreign power or agent of a 

foreign power. The question posed by S. 2586 would be whether the 

reasoning of those cases precludes expansion of the term ‘‘foreign 

power’’ to include individual international terrorists who are 

unconnected to a terrorist group. 

The Second Circuit’s decision in United States v. Duggan, 743 

F.2d 59 (2d Cir. 1984), sets out the fullest explanation of the ‘‘governmental concerns’’ that had led to the enactment of the proceVerDate Jan 31 2003 17:40 May 07, 2003 Jkt 019010 PO 00000 Frm 00099 Fmt 6604 Sfmt 6602 E:\HR\OC\SR040.XXX SR040
100

dures in FISA. To identify these concerns, the court first quoted 

from the Supreme Court’s decision in United States v. United 

States District Court, 407 U.S. 297, 308 (1972) (‘‘Keith’’), which addressed ‘‘domestic national security surveillance’’ rather than surveillance of foreign powers and their agents, but which specified 

the particular difficulties in gathering security intelligence’’ that 

might justify departures from the usual standards for warrants: 

‘‘[Such intelligence gathering] is often long range and involves the 

interrelation of various sources and types of information. The exact 

targets of such surveillance may be more difficult to identify than 

in surveillance operations against many types of crime specified in 

Title III [dealing with electronic surveillance in ordinary criminal 

cases]. Often, too, the emphasis of domestic intelligence gathering 

is on the prevention of unlawful activity or the enhancement of the 

government’s preparedness for some possible future crisis or emergency. Thus the focus of domestic surveillance may be less precise 

than that directed against more conventional types of crime.’’

Duggan, 743 F.2d at 72 (quoting Keith, 407 U.S. at 322). The Second Circuit then quoted a portion of the Senate Committee Report 

on FISA. ‘‘[The] reasonableness [of FISA procedures] depends, in 

part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist groups. * * * Other factors include the international responsibilities of the United States, 

the duties of the Federal Government to the States in matters involving foreign terrorism, and the need to maintain the secrecy of 

lawful counterintelligence sources and methods.’’ Id. at 73 (quoting

S. Rep. No. 95–701, at 14–15, reprinted in 1978 U.S.C.C.A.N. 3973, 

3983) (‘‘Senate Report’’). The court concluded:

Against this background, [FISA] requires that the FISA 

Judge find probable cause to believe that the target is a 

foreign power or an agent of a foreign power, and that the 

place at which the surveillance is to be directed is being 

used or is about to be used by a foreign power or an agent 

of a foreign power; and it requires him to find that the application meets the requirements of [FISA]. These requirements make it reasonable to dispense with a requirement 

that the FISA Judge find probable cause to believe that 

surveillance will in fact lead to the gathering of foreign intelligence information.

Id. at 73. The court added that, a fortiori, it ‘‘reject[ed] defendants’

argument that a FISA order may not be issued consistent with the 

requirements of the Fourth Amendment unless there is a showing 

of probable cause to believe the target has committed a crime.’’ Id.

at n.5. See also, e.g., United States v. Pelton, 835 F.2d 1067, 1075 

(4th Cir. 1987); United States v. Cavanagh, 807 F.2d 787, 790–91 

(9th Cir. 1987) (per then-Circuit Judge Kennedy); United States v. 

Nicholson, 955 F. Supp. 588, 590–91 (E.D. Va. 1997). 

We can conceive of a possible argument for distinguishing, under 

the Fourth Amendment, the proposed definition of ‘‘foreign power’’

from the definition approved by the courts as the basis for a determination of probable cause under FISA as now written. According 

to this argument, because the proposed definition would require no 

101

tie to a terrorist group, it would improperly allow the use of FISA 

where an ordinary probable cause determination would be feasible 

and appropriate—where a court could look at the activities of a single individual without having to assess ‘‘the interrelation of various 

sources and types of information,’’ see Keith, 407 U.S. at 322, or relationships with foreign-based groups, see Duggan, 743 F.2d at 73; 

where there need be no inexactitude in the target or focus of the 

surveillance, see Keith, 407 U.S. at 322; and where the international activities of the United States are less likely to be implicated, see Duggan, 743 F.2d at 73. However, we believe that this 

argument would not be well-founded. 

The expanded definition still would be limited to collecting foreign intelligence for the ‘‘international responsibilities of the 

United States, [and] the duties of the Federal Government to the 

States in matters involving foreign terrorism.’’ Id. at 73 (quoting

Senate Report at 14). The individuals covered by S. 2586 would not 

be United States persons, and the ‘‘international terrorism’’ in 

which they would be involved would continue to ‘‘occur totally outside the United States, or transcend national boundaries in terms 

of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their 

perpetrators operate or seek asylum.’’ 50 U.S.C. § 1801(c)(3). These 

circumstances would implicate the ‘‘difficulties of investigating activities planned, directed, and supported from abroad,’’ just as current law implicates such difficulties in the case of foreign intelligence services and foreign-based terrorist groups. Duggan, 743 

F.2d at 73 (quoting Senate Report at 14). To overcome those difficulties, a foreign intelligence investigation ‘‘often [will be] long 

range and involve[ ] the interrelation of various sources and types 

of information.’’ Id. at 72 (quoting Keith, 407 U.S. at 322). This information frequently will require special handling, as under the 

procedures of the FISA court, because of ‘‘the need to maintain the 

secrecy of lawful counterintelligence sources and methods.’’ Id. at 

73 (quoting Keith, 407 U.S. at 322). Furthermore, because in foreign intelligence investigations under the expanded definition 

‘‘[o]ften * * * the emphasis * * * [will be] on the prevention of unlawful activity or the enhancement of the government’s preparedness for some possible future crisis or emergency,’’ the ‘‘focus of 

* * * surveillance may be less precise than that directed against 

more conventional types of crime.’’ Id. at 73 (quoting Keith, 407 

U.S. at 322). Therefore, the same interests and considerations that 

support the constitutionality of FISA as it now stands would provide the constitutional justification for the S. 2586.

Indeed, S. 2586 would add only a modest increment to the existing coverage of the statute. As the House Committee Report on 

FISA suggested, a ‘‘group’’ of terrorists covered by current law 

might be as small as two or three persons. H.R. Rep. No. 95–1283, 

at pt. 1, 74 and n.38 (1978). The interests that the courts have 

found to justify the procedures of FISA are not likely to differ appreciably as between a case involving such a group of two or three 

persons and a case involving a single terrorist. 

The events of the past few months point to one other consideration on which courts have not relied previously in upholding FISA 

procedures—the extraordinary level of harm that an international 

102

terrorist can do to our Nation. The touchstone for the constitutionality of searches under the Fourth Amendment is whether they 

are ‘‘reasonable.’’ As the Supreme Court has discussed in the context of ‘‘special needs cases,’’ whether a search is reasonable depends on whether the government’s interests outweigh any intrusion into individual privacy interests. In light of the efforts of international terrorists to obtain weapons of mass destruction, it does 

not seem debatable that we could suffer terrible injury at the 

hands of a terrorist whose ties to an identified ‘‘group’’ remained 

obscure. Even in the criminal context, the Court has recognized the 

need for flexibility in cases of terrorism. See Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (‘‘the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to 

thwart an imminent terrorist attack’’). Congress could legitimately 

judge that even a single international terrorist, who intends ‘‘to intimidate or coerce a civilian population’’ or ‘‘to influence the policy 

of a government by intimidation or coercion’’ or ‘‘to affect the conduct of a government by assassination or kidnapping,’’ 50 U.S.C. 

§ 1801(c)(2), acts with the power of a full terrorist group or foreign 

nation and should be treated as a ‘‘foreign power’’ subject to the 

procedures of FISA rather than those applicable to warrants in 

criminal cases. 

Thank you for the opportunity to present our views. Please do 

not hesitate to call upon us if we may be of additional assistance. 

The Office of Management and Budget has advised us that from 

the perspective of the Administration’s program, there is no objection to submission of this letter. 

Sincerely, 

PATRICK M. O’BRIEN

(For Daniel J. Bryant, Assistant Attorney General). 

(103)

XV. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 113, as reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

existing law in which no change is proposed is shown in roman): 

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

* * * * * * *

TITLE I—ELECTRONIC SURVEILLANCE WITHIN THE 

UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES 

DEFINITIONS

SEC. 101. As used in this title: 

(a) ‘‘Foreign power’’ means—

(1) a foreign government or any component thereof, whether 

or not recognized by the United States; 

* * * * * * *

(6) an entity that is directed and controlled by a foreign government or governments. 

(b) ‘‘Agent of a foreign power’’ means—

(1) any person other than a United States person, who—

(A) acts in the United States as an officer or employee 

of a foreign power, or as a member of a foreign power as 

defined in subsection (a)(4); 

(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United 

States contrary to the interests of the United States, when 

the circumstances of such person’s presence in the United 

States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage 

in such activities; øor¿

(C) engages in international terrorism or activities in 

preparation therefor; or 

* * * * * * *

Æ